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\
L
THE
«^ic *.ii
CODE NAPOLEON:
OR,
THE FRENCH CIVIL CODE.
LCTBRALLY TRANSLATED FROM THE ORIGINAL AND OFFICIAL EDITION,
FUBLISHKD AT PARIS, IN IM4.
BY A BARRISTER OF THE INNER TEMPLE.
8-
LONDON 1
William benning, law bookseller,
62, FLEET STREET.
1827.
t t
CAc '43^.^'^y^'^^
CONTENTS.
PRELIMINARY TITLE.
Page
OF THE PUBLICATION^ EFFECT^ AND APPLICATION OF THE LAWS
IN GBNEKAL . . • . . 1
BOOK I.
Of Persons,
TITLE I.
OF THE ENJOYMENT AND PBIYATION OF CIVIL EIGHTS . 3
Chap. I. — Of the enjoyment of civil rights . . ib.
Chap. II. — Of the privation of civil rights • 5
Sect. 1. — ^Of the privation of ciril rights bj the loss of
the quality of Frenchman . . ib.
Sect. 2. — Of the privation of civil rights in consequence
of judicial proceedings .... 7
TITLE II.
OF ACTS BEFORE THE CIVIL AUTHORITIES • .11
Chap. I.— -General ordinance . . • . ib.
Chap. II.— Of acts of birth . . .17
iv Contents.
Chap. III. — Of acts of marriage . .19
Chap. IV.— Of acts of decease . .24
Chap. V. — Of acts of the civil power regarding the military
out of the territory of the republic 28
Chap. VI. — Of the amendments of acts of a ciril nature 3 1
TITLE III.
OF DOMICILE . • . . ib.
TITLE IV.
OF ABSENT PERSONS • .34
Chap. I. — Of presumption of absence .^ ib.
Chap. II. — Of the declaration of absence • 35
Chap. IIL — Of the effects of absence . . .36
Sect. 1 .—Of the effects of absence^ as respects the pro-
perty possessed by the absentee at the date of his
disappearance . . ib.
Sect. 2. — Of the effects of absence with regard to even-
tual rights which may belong to the absentee 4 1
Sect. 3. — Of the effects of absence, as they relate to
marriage . .42
Chap. IV«— >Of the superintendence of minors whose father
has disappeared • • . . ib.
TITLE V.
OF UARRIAOE .43
Chap. I. — Of the qualities and conditions required in order to
be able to contract marriage . ib.
Chap. II. — Of the formalities relative to the celebration of
marriage . • .48
Chap. III. — Of oppositions to marriage . . .49
Chap. IV. — Of petitions for nullity of marriage .51
Chap. V. — Of the obligations accruing from marriage 57
Contents.
Pa«e
Cbap- VI. — Of the respective rights and duties of married
persons . ... . . 59
CuAP. V'll. — Of the dissolution of marriage . 62
Chap. VIII. — Of second marriagi^ . . ib.
TITLE VI.
OP OIVOHCE . . . . ib.
Chap. I. — Of the causes of divorce . . ib.
Chap. II. — Of the divorce for cause determinate 64
Sect. 1. — Of the forms of the divorce for cause deter-
minate . • . ib.
Sect. 2. — Of the provisional measures to which the peti-
tion for divorce for cause determinate may give rise 73
Sect. 3. — Of exceptions at law against the suit for divorce
for cause determinate .75
Chap. III. — ^Of divorce by mutual consent 76
Chap. IV.— Of the effects of divorce ... 83
Chap. V.-^Of the separation of persons .86
TITLE VII.
or PATEHNITY AND FILIATION . . .87
Chap. I.^ — Of the filiation of legitimate children, or those bom
in marriage . . ib.
Chap. II. — Of the proofs of the filiation of legitimate children 89
Chap. III. — Of natural children .92
Sect. 1.— Of the legitimation of natural children . ib*
Sect. 2. — Of the acknowledgment of natural children 93
TITLE VIII.
OF ADOPTION AND FRIENDLY GUARDIANSHIP • 95
»
Chap. I. — ^Of adoption . . ib.
Sect. I — Of adoption and it-s effects . ib.
Sect* 2.— -Of the forms of adoption . .98
vi Contents.
Page
Cbav. II.— Of friendly guardianship . .100
TITLE IX.
Of PATERNAL POWER . . . • • 103
TITLE X.
107
ib.
ib.
ib.
OF MINORITY, GUARDIANSHIP, AND BMANCIPATION
Chap. I. — ^OfminDrity ....
Chap. II. — Of guardianship
Sect. 1 . — Of the guardianship of father and mother
Sect. 2.— Of the guardianship appointed by the &ther or
mother . • . •
Sect. 3.— Of the guardianship of ancestors
Sect. 4.-^Of guardianship appointed by the family-
council ....
Sect. 5. — Of the supplementary guardian
Sect. 6^ — Of the causes which excuse from guardianship 1 1 7
Sect. 7. — Of incapacity, exclusion, and deprivation of
guardianship • . . 121
Sect. 8. — Of the guardian's administration .123
Sect. 9. — Of the accounts of the guardianship . 130
Chap. III. — Of emancipation . .132
109
110
111
116
TITLE XI.
or MAJORITY, INTERDICTION, AND THK JUDICIAL ADVISER 135
Chap. I. — Of majority . . . ib.
Chap. II. — Of interdiction . • . ib.
Chap. III. — Of the judicial adviser . . . .141
Contents. vii
BOOK II.
Of Property, and the differeni Modifications of Property.
TITLE I.
PlfV
OF THB DISTINCTION OF PROPERTY • .142
Chap. I. — Of immoveable property . . . ib.
Chap. II.— Of moveables .... H5
Chap. III. — Of property, with referenee to thoee who are in
the possession of it .... 148
TITLE II.
OF PROPERTY . .150
Chap. 1.— -Of the right of accession over the produce of any
thing . . • . ih.
Chap. II. — Of the right of accession over what is connected
and incorporated with any thing .151
Sect. 1 . — Of the right of accession relatively to things
immoveable . . .152
Sect. 2. — Of the right of accession relatively to moveable
pn^rty ...... 156
TITLE III.
OF USUFRUCT, RIGHT OF COMMON, AND OF HABITATIOH 160
Chap, h — Of usufruct . ib.
Sect. Id — Of the rights of the usufructuary • .161
Sect. 2. — Of the obligations of the usufructuary 166
Sect. 3.— Of the manner in which usufruct is put an
end to . . , 171
Chap. I I.-'Of common and habitation . .173
viii Contents.
TITLE IV.
Page
OF SERVITUDES OR MANORIAL SBRTlCES • .175
Chap. I.->-Of servitndes derived from the situation of places 176
Chap. II — Of servitudes established by law . .178
Sect. 1. — Of the party-wall and ditch . .179
Sect. 2. — Of the distance and intermediary works re-
quired for certain buildings . . ,184
Sect. 3.— Of vieivs over a neighbour's property . 185
Sect. 4. — Of the droppings of house-eaves .186
Sect. 5.— Of the right of way . .187
Chap. III. — Of servitudes established by the act of man 188
Sect. 1 . — Of the different species of servitudes which may
be established over property . ib.
Sect. 2. — Of the mode of establishing servitudes • 189
Sect. 3.— Of the rights of the proprietor of the estate
to which the servitude is due . . .191
Sect 4. — Of the manner in which servitudes are extin-
guished ..... 193
BOOK III.
0/ the different Modes of acquiring Property,
general dispositions . . . .194
TITLE I.
of successions . .196
Chap. I . — Of the opening of successions and of the seisin of heirs ib,
Chap. II. — Of the qualities requisite to succeed • • 1 98
Chap. III. — ^Of the dififarent orders of suc^ssioi) . 200
Sect. 1. — General dispositions . « . ib.
Sect. 2. — Of representation • . . 202
Sect. 3. — Of successions devolviqg upon descendants . 204
Contents.
IX
Sect. 4.— Of siicoesMons devolving upon ancestors
Sect. 5. — Of collateral successions
Chap. IV. — Of irregular successions
Sect. 1 * — Of the rights of natural children over the pro-
perty of their father or mother, and of the succession
to natural children dead without issue
Sect 2«— ^f the rights of the surviving conjunct and of
the republic ....
Chap. Y^— Of the acceptance aud repudiation of successions
Sect. 1. — Of acceptance
Sect. 2-— Of the renunciation of successions
Sect. 3. — Of the privilege of inventory, of its effects
and of the obligations of the beneficiary heir .
Sect. 4. — Of vacant successions
Chap. YI. — Of division and restitution
Sect. 1.— Of the action for division and of its form
Sect. 2. — Of restitutions
Sect. 3^— Of payment of debts
Sect. 4. — Of the effects of distribution and of the war-
ranty of the lots
Sect. 5. — Of annulment of distribution
Page
204
206
208
ib.
211
213
ib.
215
217
222
224
ib.
231
237
241
242
TITLE II.
OF DONATIONS DURING LIFE AND OF WILLS
244
ib.
Chap. I.— General regulations ....
Chap. 11.^ — Of the capability of disposing or of receiving by do-
nation during life or by will . . 245
Chap. III. — Of the disposable portion of goods, and of reduction 249
Sect. 1. — Of the disposable portion of goods . ib.
Sect. 2. — Of the reduction of donations and legacies . 25 1
C^AP. IV. — Of donations during life ... 254
Sect. 1. — Of t(ie form of donations during life . ib*
Sect. 2.— Of exceptions to the rqle on the irrevocability
of donations during life .260
Chap. V.^— .Of testamentary dispositions . • 265
Contents.
Sect. 1 .-—Of general rules on the form of wills 263
Sect. 2. — Of particular rules touching the form of certain
wills . . . . .269
Sect. 3. — ^Of appointment of heir, and of legacies in
general ..... 275
Sect. 4. — Of the general legacy . . ib.
Sect 5.— Of legacy by general title 277
Sect. 6. — Of particular legacies 278
Sect. 7*^-Of testamentary executors .281
Sect. 8.— Of the revocation and of the lapse of wills . 284
Chap. VI.— <Of dispositions permitted in fiivour of the grand-
children of the donor or testator, or of the children of
their brothers and sisters 287
Chap. VII. — Of distributions made by the father, mother, or
other ancestors, among their descendants 294
Chap. VIII. — Of donations made by the marriage-contract to
the parties, and to children to be born of the marriage 296
Chap. IX.— <0f dispositions between married })er8ons, either by
contract of marriage, or during marriage 299
TITLE III.
OF CONTRACTS OR CONVENTIONAL OBLIGATIONS IN GENERAL 302
Chap. L — Preliminary regulations . ib.
Chap. II. — Of conditions essential to the validity of agreements 304
ib.
307
308
309
310
ib.
ib.
312
Sect. 1. — Of consent
Sect. 2. — Of the capacity of the contracting parties
Sect. 3. — Of the object and matter of contracts
Sect. 4. — Of the cause
Chap. III. — ^Of the effect of obligations
Sect. 1.— General regulations
Sect. 2. — Of the obligation of giving
Sect. 3. — Of the obligation to do or not to do
Sect. 4. — Of damages and interest resulting from the
non-performance of the obligation
Sect. 5. — Of the interpretation of agreements
313
316
Contents. xi
Page
Sect 6.— Of the effect of agreements as respects third
persous ....
Chap. IV«— ^Of the different species of obligations
Sect. 1 . — Of conditional obligations
§ I. Of conditions generally, and of their different
kinds ....
§ 2. Of the suspensive condition
§ 3. Of the condition dissolutory
Sect. 2. — Of obligations for a term
Sect. 3.— Of alternative obligations
Sect. 4.— Of obligations joint and several
§ 1. Of creditors jointly and severally interested
§ 2. Of debtors jointly and severally interested
Sect. 5.— Of obligations divisible and indivisible
§ 1. Of the effects of the divisible obligation
§ 2. Of the effects of an indivisible obligation
Sect. 6 — Of obligations with penal clauses
Ceuu>. v.— Of the extinction of obligations
Sect. 1.— Of payment
§ 1. Of payment in general
§ 2. Of payment with substitution
§ 3. Of the application of payments
§4. Of tenders of payment, and of deposit
§ 5. Of the cession of property
Sect. 2.*— Of novation
Sect. 3.— -Of the remission of a debt
Sect. 4. — Of compensation
Sect. 5.«-0f confusion
Sect. 6. — Of the loss of the thing due
Sect. 7. Of the action for nullity, 6r for rescission of
agreements ....
Chap. VI. — Of the proof of obligations and of that of payment
Sect.]. — Of literal proof
§ 1. Of an authentic document
§ 2. Of an act under private signature
317
318
ib.
ib.
321
322
323
ib.
325
ib.
326
330
331
332
333
335
336
ib.
339
341
342
345
346
349
350
353
354
355
357
358
ib.
359
xii Contents.
Page
§ 3. Of tallies . . . .362
§ 4. Of copies of documents . . 363
§ 5. Of acts of recognition and confinnation 365
Sect. 2. — Of testimonial proof . 366
Sect. 3« — Of presumptions .... 369
§ 1 . Of presumptions ^tablished by law ib.
§ 2. Of presumptions which are not established by law 370
Sect. 4.-^-0f the acknowledgment of the party ib.
Sect. 5. Of oath . .371
§1. Of the oath decisory . ib.
§ 2. Of the oath officially administered . 373
TITLE IV.
or BNOAOBMENTS WHICH ARE FORMED WITHOUT CONTRACT 374
Chap. I. — Of quasi-contracts .... 375
Chap. II.-»Of crimes and quasi-crimes • 378
TITLE V.
op THE CONTRACT OF MARRIAOB AND OP THE RESPECTIVE
RIGHTS OF MARRIED PERSONS • 379
Chap. I — ^General regulations . . . ' ib.
Chap. II. — Of the law respecting community . 382
Part 1 . — Of legal community . . . 383
Sect. 1 . — Of that which composes community actively and
passively . • ib.
§ I. Of the active part of community • • ib*
«
§ 2. Of the passive part of community^ and of actions
which result therefrom against the community . 386
Sect. 2. Of the administration of the community, and of
the effect cf the acts of either of the married parties
relating to the cor^ugal union 391
Contents. xiir
Pug©
Sect. 3.— rOf the dissolution of cominuDity aud of seme of
its coosequences . . • . . 397
Sect. 4. — Of the aooeptaDoe of oommunity, and of the
renudciatioii which may be made thereof^ with the
cooditioDS relating thereto . . . 401
Sect. 5. — Of the dntribution of the oommttoity after
- acceptance ..... 405
§ 1 . Of the partition of the active ib.
§ 2. Of the passive in the community, and of contribu-
tion to debts .... 409
Sect. 6. — Of the renunciation of community and of its
effects .411
Regulation relative to legal community, when one of the
married parties or both of them have children of
previous marriages .413
Part 2. — Of conventional community, and of agreements
which may modify aUd even etclude legal com-
munity . , - . • tb«
Sect. l.-—<Of community conined to property adpiired 414
Sect. 2.— Of the clause which excludes ivom the commti*
nity the moveable property in whole or in part 415
Sect. 3w — Of the clause making moveable .416
Sect. 4.-"^^ the article of sepairation of debts . 4*18
Sect. 5.— Of the power granted to the wife of resuming
her conttilmti^ii iVe^ and uncmenikibereii . 480
Sect. 6."-^ conventionid i^yersion fpredpittj . 421
Sect. 7 — Of the brtides by which miM|ifd pottioos in
the community are assigned to either of the maitied
partiei» .422
Sect. 8.^0f community by general title- • 424
Regulations common to the eight preceding sections 425
Sect. 9. — Of agreements excluding community • ib.
§ 1. Of the clause implying that the parties marry
without community . *• • 426
§ 2. Of the clause of separation of property . 427
xiv Contents.
Ptge
Chap. III.— Of regulation of dowry • 428
Sect. 1. — Of settlement of dowry 429
Sect. 2. — Of the rights of the husband oyer the property
in dowry^ and of the inalienable nature of the funds
of the dower ..... 430
Sect. 3. — Of the restitution of dower 4^5
Sect. 4.— «Of paraphernalia .438
Particular regulation .... 439
TITLE VL
OF SALES .....
Chap. I. — Of the nature and form of sales
Chap. II. — Who may buy or sell
Chap. III.— Of things which may be sold
Chap. IV. — Of the obligations of the seller
Sect. 1.— General regulations
Sect. 2.— Of delivery
Sect 3.*-Of warranty
§ 1. Of warranty in case of eviction
§ 2. Of warranty against defects in the thing sold
Chap. V.— Of the obligations of the purchaser
Chap'. VI. — Of the nullity and rescinding of sales
Sect. 1.— Of the power of repurchase
Sect. 2.-— Of annulling sales for cause of injury
Chap. Vll.^Of auctions • ' .
Chap. VIIL^^Of the transfer of credits and other incorporeal
rights ...... 465
440
ib.
442
444
445
ib.
ib.
450
ib.
454
456
458
ib.
462
464
TITLE VII.
OF BABTBR .... 468
Contents.
XV
TITLE VIII.
OF THR CONTRACT OF HIRING .... 469
Chap. I. — General regulations . . ib.
Chap. II. — Of the hiring of things . . 470
Sect. I. — Of the rules common to leases of houses and
rural property . .471
Sect. 2. — Of particular rules in leases .47^
Sect. 3. — Of the rules peculiar to farming leases 482
Chap. III. — Of the hiring of labour and industry 487
Sect. I. — Of the hiring of domestics and artificers ib.
Sect. 2. — Of carriers by land and by water . 488
Sect. 3. — Of estimates and works by contract . 489
Chap. IV.— Of lease in cheptel .492
Sect. 1. -^General regulations • ib*
Sect. 2. — ^Of simple cheptel . .493
Sect. 3. — Of cheptel by moiety 496
Sect. 4. — Of cheptel given by the proprietor to his farmer
or joint cultivator ' . . . . ib.
§ 1 . Of cheptel given to the farmer . . ib.
§ 2. Ofcheptel given to the joint cultivator 498
Sect. 5.^^0f the contract improperly called cheptel ib.
TITLE IX.
OF THE CONTRACT OF PARTNERSHIP
Chap. I. — General ordinances
Chap. II. — Of the different species of partnerships
Sect. 1. — Of general partnerships
Sect. 2.'»0f particular partnerships
Chap. III. — Of the engagements of partners among them-
selves^ and with regard to third persons
Sect. 1.— Of the engagements of pai*tuers to each other
Sect. 2. — Of the engagements of partners with respect
to third persons . . .
499
ib.
500
ib.
SOI
502
ib.
508
xvi Contents.
TITLE X.
OP LOANS .....
Chap. I. — Of loan for use^ or gratuitously
Sect. 1. — Of the nature of loan for use
Sect. 2. — Of the engagements of the borrower
Sect. 3.*-Of the engagements of the party who lends for
WBC • • . * •
Chap. II.*-Of loan for consamption, or simple loan
Sect. 1. — Of the nature of the loan for consumption
Sect. 2.— Of the obligations of the lender
Sect. 3.*-Of the engagements of the borrower
Chap. III.*-Of loan on interest
Ptge
Chap. IV.**Of the different modes by which partnership is put
an end to . . . 509
Disposition relative to commercial partnerships • 511
512
ib.
ib.
513
515
516
ib.
517
518
519
TITLE XL
or DEPOSIT AND SBQUESTRATION .521
Chap. I.— -Of deposit in general and of its different species ' ib.
Chap. II.-— Of deposit properly so called " . . ib.
Sect. L— -Of the nature and essence of the contract of
deposit ... .lb.
Sect. 2.— ^f Toluntary deposit • . .522
Sect. 3.^-Of the obligations of the depositary 523
Sect 4. — Of the obligations of the party by whom the
deposit was made . . • . 528
Sect. 5. — Of necessary deposit . 529
Chap. III.— -Of sequestration .... 530
Sect. 1 . — Of the different descriptions of sequestration ib.
Sect. 2. — Of conventional sequestration . . ib.
Sect. 3.— -Of judicial sequestration or deposit . 531
. Cmients* xvii
TITLE Xlf.
OV ALEATORY CONTRACTS • • . . 532
Ghaf. I.— Of play and betting • JS33
Chap. II«-— Of the contract for life annuities . . ib.
Sect. 1.— Of the conditions requisite to the validity of
the contract . . • *^
Sect 2.-— Of the effects of the contract between the con-
tracting parties . . « . 535
TITLE XIII.
<f9 PROCURATION . • • . • 537
Chap. I.— -Of the nature and form of procuration . ib.
Chap. II.-— Of the obligations of the agent • 539
Chap. III. — Of the obligations of the principal • • 541
Chap. IV.— -Of the different modes in which procuration is
terminated • • • • 542
TITLE XIV.
OF BBCOaiTY ...... 544
Chap. I.—- Of the nature and extent of security * ^'
Chap. II.— Of the eflbct of security .546
Sect. I.— Of the effect of security between the creditor
and the surety • ib.
Sect. 2.— 'Of the effect of security between debtor and
surety ...••• 548
Sect. 3. — Of the effect of security between cOHW^^Wft 560
Chap. IIL-— <0f the extinction of security . . . ib.
Chap. IV. — Of legal and judicial security « . 5M
Tm£ XV.
<IF THE COMPOUNDING OP ACTIONS • . 553
xviii Contents.
TITLE XVI.
Paflt
OF PERSONAL 4B1B8T IN A CITIL MATTER • 556
TITLE XVII.
OP PLSDOINO ....... 560
Chap, I.*— Of pawning • • • ib.
Chap. II.— Of anticlireflis .... 564
TITLE XVIII.
OP PRITILEOES AND MORTGAOBtt .566
Chap. I.^-<jeneral enactments • ib.
Chap. II. — Of priyileges .... 567
Sect. 1. — Of privileges over moveables . 568
. ( 1. Of general privileges over moveables ib.
{ 2. Of privileges over certain moveables . ib.
Sect. 2.— Of privileges over immoveables • .571
Sect. 3. — Of privileges which extend over moveables as
well as immoveables . . ^ • * 572
Sect. 4.— >Of the manner in which privileges are pre-
served ...... 573
Chap. III. — Of mortgages . . . • 576
Sect. 1.-— Of legal mortgages . . 577
Sect. 2.— Of judicial mortgages . • .578
Sect. 3.— Of conventional mortgages . .579
Sect. 4. — Of the order of mortgages with regard to each
other 1 . . . . 581
Chap. I V.«— Of the mode of enrolment of privileges and mort-
gages 585
Chap. V.»-Of cancelling and reducing enrolments . 590
Chap. VI.— «Of the effect of privileges and mortgages against
third persons in wrongful possession 593
Chap. VII.— .Of the extinction of pririleges and mortgages 597
Contents. xix
Chap. VIII. — ^Of the mode of clearing property of privil^^s
and mortgages ..... 598
Chap. IX. — Of the mode of exonerating from mortgages^ where
n*) enrolment exists, over the property of husbands
and guardians ..... i03
Chap. X«— Of the publicity of the registers, and of the respon-
sibility of the keepers .... 605
TITLE XIX.
OF FOBCIBLB EJKCTlfENT, AND OF THE ORDER AMOMO CRE-
DITORS ...... 606
Chap. I.— Of forcible ejectment . . ib.
Chap. II.— Of the order and distribution of the price among
the creditors . • 612
TITLE XX.
OF PB.SSCRIPTION ..... 613
Chap. I.— Xreneral ordinances . ib.
Chap. II.-— Of possession 614
Chap. III.^— Of the causes which prevent prescription 616
Chap. I V.^— Of the causes which interrupt, or which suspend
the course of prescription 617
Sect. 1.^— Of the causes which interrupt prescription ib.
Sect 2i^— Of the causes which suspend the course of pre-
scription . • . . . 619
Chap. Vw— Of the time required in order to prescribe 621
Sect 1«— General ordinances . ib.
Sect 2.-~0f a thirty years' prescription . 622
Sect. 3.^-Of prescription by ten and twenty years 623
Sect 4. — Of some particular prescriptions 624
FRENCH CIVIL CODE.
PRELIMINARY TITLE.
OF THE PUBLICATION, EFFECT, AND APPLICATION OF
THE LAWS IN GENERAL.
lyecreed bth i>f March, 1803. Promulgated Ibth of the same Month,
ARTICLE 1.
The laws are executory throughout the whole
French territory, by virtue of the promulgation
thereof made by the first consul.
They shall be executed in every part of the
republic, from the moment at which their promul-
gation can have been known.
The promulgation made by the first consul shall
be taken to be knowii in the department which shall
be the seat of government, one day after the pro-
mulgation ; and in each of the other dep0.rtments>
after the expiration of the same interval augmented
by one day for every ten my riameters (about twenty
ancient leagues) between the town in which the pro-
mulgation shall have been made, and the chief place
of each department.
B
« PreUminary Title.^Ofthe Publication^ Sgc.
%
The law ordains for the future only ; it has no
retrospective operation.
3.
The laws of police and public security bind all
the inhabitants of the territory.
Immoveable property, although in the possession
of foreigners, is governed by the French law.
The laws relating to the condition and privileges
of persons govern Frenchmen, although residing in
a foreign country.
4.
The judge who shall refuse to determine under
pretext of the silence, obscurity, or insufficiency of
the law, shall be liable to be proceeded against as
guilty of a refusal of justice.
The judges are forbidden to pronounce, by way
of general and legislative determination, on the
causes submitted to them.
6.
Private agreements must not contravene the laws
wfaidi concern public order and good morals.
BOOK I.
OF PERSONS.
Decreed 8th of March, 1803. Promulgated 18th of the tame Month.
TITLE I.
OF THE ENJOYMENT AND PRIVATION OF CIVIL RIGHTS.
CHAPTER I.
Of the Ergoyment of Civil Rights.
7.
The exercise of civil rights is independent of the
quality of citizen, which is only acquired and pre-
served conformably to the constitutional law.
8.
Every Frenchman shall enjoy civil rights.
9.
Every individual born in France of a foreigner^
may, during the year which shall succeed the period
of hig majority, claim the quality of Frenchman ;
provided, that if he shall reside in France he declares
hb intention to fix his domicile in that country, and
that in case he shall reside in a foreign country, he
give security to become domiciled in France and
establish himself there within a year, to be computed
from the date of that undertaking.
B 2
4 Book I. — Of Persons.
10,
Every child born of a Frenchman in a foreign
country is French. Every child born in a foreign
country of a Frenchman who shall have lost the
quality of Frenchman, may at any time recover this
quality by complying with the formalities prescribed
in the ninth article.
11.
A foreigner shall enjoy in France the same civil
rights as are or shall be accorded to Frenchmen by
the treaties of that nation to which such foreigner
shall belong.
12.
The foreigner who shall have married a French -
man, shall follow the condition of her husband.
18.
The foreigner who shall have been permitted by
the government to establish his domicile in France,
shall enjoy in that country all civil rights so long as
he shall continue to reside there.
14.
A foreigner, although not resident in France, may
be cited before the French courts, to enforce the exe-
cution of engagements contracted by him in France
with a Frenchman; he may be summoned before
the tribunals of France, on account of engagements
entered into by him with Frenchmen in a foreign
country.
Title I^^^fihe Erg. and Priv. of Civ. Bights. 5 -
15.
A Frenchman may be summoned before a French
court, for engagements contracted by him in aforeign
country, though with a foreigner.
16.
In all causes, except commercial ones, in which a
foreigner shall be plaintiff, he shall be required to give
security for the payment of the costs and damages
incident to the suit, unless he possess in France im*
moveable property of value sufficient to guarantee
such payment
CHAPTER 11.
Of the Privation of Civil Rights.
SECTION I.
Of the Privation of Civil Rights by the Losi of the Qfiolity of
Frenchman,
17.
The quality of Frenchman shall be lost, 1st, by
naturalization in a foreign country ; 2d, by accept-
ing, without the authority of government, public
employments bestowed by a foreign power ; Sdly, by
adoption into any foreign corporation which shall
require distinctions of birth ; .4thly, in short, by any
settlement made in a foreign country, without in-
tention of return.
Commercial establishments shall never be con-
6 Book /.— (y Persons.
sidered as having been made without intention of
return.
18.
A Frenchman^ who shall have lost his quality of
Frenchman, may at any time recover it by returning
to France with the sanction of government, decla-
ring at the same time his intention to settle there,
and his renunciation of every distinction inconsistent
with the law of France.
19.
A Frenchwoman, who shall espouse a foreigner,
shall follow the condition of her husband.
If she become a widow, she shall recover the qua-
lity of Frenchwoman, provided she already reside
in France, or that she return thither under the sanc-
tion of government, and declare at the same time
her intention to fix there.
«
SO.
The individuals who shall recover the quality of
Frenchman or Frenchwoman in the cases provided
for by Articles 10, 18, and 19f shall not be per-
mitted to avail themselves of it until they have
fulfilled the conditions imposed upon them by thos^
articles, and only for the exercise of rights open to
their advantage after that period.
21.
The Frenchman who, without the authority of the
government, shall engage in military service with a
foreign power, or shall enrol himself in any foreign
Ti/kl.— Of the Efff. and Prmleges of Civil Rights. 7
military associatioiii shall lose his quality of French-
man.
He shall not be permitted to re-enter France with^
out the permission of the government, nor to recover
the quality of Frenchman except by complying with
the conditions required of a foreigner in order to
become a citizen j and this without affecting the
punishments denounced by the criminal law against
Frenchmen who have borne or shall bear arms against
their country.
SECTION 11.
(y^ Pnvathn of Citnl R^kts in consequence of Judicial
22.
Sentences to punishments, the effect of which is to
deprive the party condemned of all participation in
the civil rights hereafter mentioned, shall imply civil
death.
23.
Sentence to natural death shall imply civil death.
24.
Other perpetual afflictive punishments shall not
imply dvil death, except so far as the law shall have
attached that consequence to them.
25.
By civil death, the party condemned loses his pro-
perty in all the goods which he possessed ; and the
8 Book I,:—Of Persons^
succession is open for the benefit of his heirs, on whom
his estate devolves, in the same manner as if he were
naturally dead and intestate.
He can no longer inherit any estate, nor transmit,
by this title, the property which he has acquired in
consequence.
He is no longer capable of disposing of his pro*
perty, in whole or in part, either by way of gift
during his life, or by will, nor of receiving by similar
title, except for the purpose of subsistence. He
cannot be nominated guardian, nor concur in any
act relative to guardianship.
He cannot be a witness in any solemn public act,
nor be admitted to give evidence in any court. He
cannot engage in any suit, whether as defendant or
plaintifi^ except in the name and by the intervention
of a special curator appointed for him by the court
in which the action is brought.
He is incapable of contracting a marriage attended
by any civil consequences.
If he have previously contracted marriage, it is
dissolved, as respects all civil effects. His wife and
his heirs shall respectively exercise those rights and
demands to which his natural death would have
given rise.
26.
Peremptory sentences only import civil death,
reckoning from the day of their execution, whether
real or by representation.
ntk h—JQfthe Efff. and Priv. tf Civil Rights. 9
27.
Condemnations for contumacy shall not import
civil death until after five years from the execution
of the sentence by representation, and during which
the condemned party may make his appearance.
28«
Those condemned for contumacy shall, during five
years, or until they shall make appearance or until
their arrest during that period, be deprived of the
exercise of civil rights. Their estate, shall be admi-
nistered and their rights exercised in the same manner
as those of absent persons.
29.
When the party under sentence for contumacy shall
appear voluntarily during the five years, to be reck-
oned from the day of the execution, or when he shall
have been seized and made prisoner during that in-
tervaly the judgment shall be entirely reversed } the
accused shall be restored to the possession of his
property ; he shall be tried afresh ; and if by the
new judgment he is condemned to the same punish-
ment or a different punishment equally drawing after
it civil death, it shall only take place from^ the date
of the execution of the second judgment.
80.
When a party condemned for contumacy, \fho
shall not have appeared or who shall not have been
made prisoner until the expiration of the five years.
10 Book Lf-^f Persons.
shall be acquitted by thb new judgment, or shall
only be sentenced to a punishment that does not
carry with it civil death, he shall be reinstated in the
full enjojrment of his civil rights for the future, reck*
oning from the day on which he shall have reap*
peared in court} but the first judgment shall extend^
as regards the past, to all consequences produced by
civil death during the interval which elapsed between
the period of the expiration of the five years and the
day of appearance in court*
SI.
If the party under sentence for contumacy dies
during the five years interval of grace without having
appeared, or without having been seized or arrested,
he shall be deemed dead as to the entirety of his
lights ; judgment of contumacy shall be reversed
entirely, without prejudice nevertheless to the action
of any civil plaintifi; which shall only be entered
against the heirs of the party condemned according
to the civil form.
32.
In no case shall efflux of time (prescription) after
sentence restore a party condemned to his civil
rights for the future.
•
38.
Prqperty acquired by an outlawed person^ after
inoirring civil death, and of which he shall be found
possessed at the date of his natural death, shall be-
Tide 11.-— Of Acts before the Chil Avtharities. 11
long to the nation by right of disherison. Never-
dieles the government shall be adlowed to make
for the benefit of the widow^ children, or relations of
the party condemned, such disposition respecting it
as humanity shall suggest.
TITLE II.
OF ACTS BE70RE THE CIVIL AUTHORITI£S.
Decreed I2th of March, 1803. Promulgated 2ist of the same Month.
CHAPTER I.
General Ordinance.
84.
The records of the civil power shall declare the
year, the day, and hour, at which they shall be re-
ceived ; the Christian name, surname, age, profession,
and domicile of all those who shall be therein men-
tioned.
S5.
The ofiScers of the civil courts shall insert nothing
in the acts which they shall receive, either by way of
note or of any explanation whatsoever, other than
what is declared by the parties.
*
86.
In those cases in which parties interested are not
bound to appear in person, it shall be allowed them
to make appearance by means of a special and au-
thentic warrant of attorney.
12 Book I.^Of Persons.
87.
Witnesses brought to attest documents in the civil
courts shall be of the male sex only, of the age of
21 years at the least, relations or others, and shall
be chosen by the parties interested.
S8.
The officers of the civil court shall read over their
acts to the parties appearing or to their attorneys,
and also to the witnesses.
The performance of this formality shall be men.
tioned therein.
89.
These documents shall be signed by the officer of
the civil court, by the parties appearing, and by the
witnesses; or mention shall be made of the cause
which prevents the parties and the witnesses from
signing.
40.
The records of the civil courts shall be enrolled,
in every commune, in one or more registers kept in
duplicate.
41.
The registers shall be indorsed from first to last,
and marked on each page, by the president of the
court of first instance, or by the judge who shall
supply his place.
TiOe IL— Of Acts before the dvil Authorities. IS
The acts shall be inscribed on the registers in suc-
cession, without any blank. Rasures and references
shall be approved and signed in the same manner as
the body of the act. No abbreviations shall be used,
nor any date inserted in figures.
48.
The registers shall be closed and bound up by the
oflScer of the civil court, at the end of every year;
and within the month, one of the duplicates shall be
deposited among the archives of the commune, the
other among the rolls of the court of first instance.
44.
The warrants of attorney and other papers which
ought to continue annexed to the records of the civil
courts, shall be deposited, after being marked by the
person who shall have produced themrand by the
officer of the court, among the rolls of the tribunal
with the duplicate of the registers which shall be
deposited among the said rolls.
45.
£very person shall be allowed to obtain from the
depositories of the registers of the civil courts ex-
tracts from those registers ; and extracts so obtained,
corresponding with the registers and authenticated
by the president of the court of first instance, or by
the judge who shall supply his place, shall be evi-
dence until proved false.
14 Book L-^^f Persons.
46.
Where no registers exist, or where they shall be
lost, proof of them shall be received, as well by
written documents as by witnesses; and in such
eases marriages, births, and deaths, may be proved
as well by registers and papers coming from the pos*
session of fathers and mothers deceased, as by wit*
nesses.
47-
Every act done in a civil court of a foreign
country^ either by Frenchmen or foreigners, shall be
deemed valid, if reduced to writing according to the
forms used in such country.
48.
Every act done in a civil court, in a foreign
country by Frenchmen, shall be valid, if it has been
acknowledged conformably to the French laws by
the diplomatic agents, or by the commissioners of
the republic for commercial relations*
49.
In all cases where mention of an act relating to a
civil court ought to be made on the margin of an-
other act already enrolled, it shall be done, at the
request of the parties interested, by the officer of the
civil court, on the current rasters, or on those
which have been deposited among the archives of
the commune, and by the keeper |of the rolls of the
tribunal of first instance, on the registers deposited
Tttie II. ^Of Acts before the Civil Authorities. 15
amcmg the rdls ; to which end Uie officer of the civil
court shall give notice within three days to the com-
misaioner of government in the said court, who shall
take care that such mention is made in a similar
manner on both registers.
50.
Every ofience against the preceding articles com-
mitted by any of the cheers therein named, shall be
prosecuted before the tribunal of first instance, and
punished with a fine not exceeding 1<X) francs.
51.
Every officer entrusted with the registers shall be
answerable civilly for any alterations made therein,
saving his remedy^ as the case may be, against the
authors of such alterations*
52.
Every alteration, every falsification of the acts of
the civil courts, every enrolment made upon a loose
sheet and otherwise than on the rasters designed
for this purpose, shall give a right <^ action for da**
mages to the parties, over and above the punishments
contained in the penal code.
58.
The comBodsaioner of govei;nment at the court of
first instance shall be bound to verify tibe state of the
roisters at the time. of their being deposited among
the rolls of the court ; he shall draw up a concise
16 Book /..--O/ Persons.
statement of such verification, he shall certify all
ofiences and crimes committed by the officers of the
civil courts, and shall demand sentence of fine against
them.
54.
In all cases where a tribunal of first instance shall
take cognizance of acts relating to the civil courts,
the parties interested may appeal against the judg-
ment.
CHAPTER IL
Of Acts qf Birth.
m
65.
«
Declarations of birth shall be made, within three
days after delivery, to the civil officer of the place :
the child shall be shown to him.
56.
The birth of the child shall be declared by the fa-
ther, or, in his default, by the doctors in physic or
surgery^ the midwives, the officers of health, or other
persons who shall have attended at the birth; and
where the mother shall have been delivered out of
her own house, by the party at Whose house such
delivery took place.
The act of birth shall be immediately reduced to
writings in the presence of two witnesses.
Title IL— Of Acts before the Civil Authorities. 17
57.
The act of biith shall set forth the day, the hour,
and the place of birth, the sex of the infant, and the
Christian names which shall be given it, the Christian
and surnames, profession, and domicile of the pa-
rents, and those of the witnesses.
58.
'Every person who shall have found a new-born
infant is required to carry it to the civil officer, as
well as the clothes and other efi^cts found with the
infant, and to declare all the circumstances of the
time and place when and where found ; a particular
statement of which shall be drawn up, containing
moreover the apparent age of the child, its sex, the
names which shall be given it, and the civil authority
to which it shall be committed. This statement
shall be inscribed upon the registers.
59.
If a child is born at sea, the act of birth shall be
drawn up within twenty-four hours, in presence
of the father, if at hand, and of two witnesses selected
from the officers of the vessel, or for want of them
from the ship's crew. This act shall be reduced to
writing, that is to say, .on board the ships of the
state, by the officer for the administration of the
marine ; and on board vessels belonging to a pri«
vateer or merchant, by the captain, master, or com-
mander of the ship. The act of birth shall be in-
serted at the end of the roll of the ship's crew.
c
18 * Book I. -^Of Persons.
60.
At the first port at which the vessel shall touch,
whether to refit, or for any other purpose, except
laying up, the officers for the administration of the
marine, the captain, master, or commander, are re-
quired to deposit two authentic copies of the acts
of birth, which they shall have reduced to writing,
that is to say, in a French port at the office of the
prefect of maritime inscription, and in a foreign port
in the hands of the commissioners for commercial
relations. One of these copies shall remain deposited
in the office of maritime inscription, or in the cfaan^
eery of the commissariat ; the other shall be sent to
the minister of marine, who shall cause a copy of each
of the said acts, certified by himself, to be transmitted
to the civil officer for the domicile of the father of
the child, or of its mother, if the father is unknown :
this copy shall immediately be inscribed on the
registers.
61.
On the arrival of the ship at its port of discharge,
the roll of the ship's crew shall^be deposited in the
office of the prefect of maritime inscription, who shall
send a copy of the act of birth, with his signature,
to the civil officer at the ' domicile of the child^s
father, or of its mother, if the father is unknown :
this copy shall then be inscribed on the registers^
62.
The act of acknowledgment of a child shall be
inscribed on the registers, at its date \ and mention
Title II. — Of Acts before the Civil Authorities. 19
shall be made of this in frhe margin of the act of birth,
if one exists.
CHAPTER III.
Of Acts of Marriage.
68.
Before the celebration < of a marriage, the civil of-
^er shall make two publicatiooi^, with an interval of
eight day^ between them, one being on a Sunday,
ibeferethe gate of the town-hall. Theae publications,
and the act which shall be drawn up relating to them,
vshall set forth the Christian names, surnames, pro-
•feesions, and domiciles of the parties about to be
married, the circumstance of their majority or mino-
rity, and the Christian names, surnames, professions,
and domiciles of their .Others and mothers. This
act diall set forth, moreover, llie days, places, and
hours at which the publications shall have been
made; it sbairbe inscribed on one single register,
which shall be indorsed and marked as directed in
article 41, and deposited at the end of every year
among the rolls of the court of the circle.
-Am^extract from the act of publication shall be
iiffixed to the door of the town-hall, and remain; so
during theinterval of eight days between, the one
and< the other/ publication. The marriage ^hall not
be celebrated until the third day exclusive after th^t
of the second publication.
• c 2
30 Book I. — Of Perso7is.
65.
Where a marriage has not been celebrated within
a year, to be computed from the expiration of the
interval between the publications, it shall not be cele-
brated until new publications have been made ac-
cording to the forms hereinbefore prescribed.
66.
Acts of opposition to a marriage shall be signed,
both original and copy, by the parties opposing, or
by their attornies, specially and authentically ap-
pointed ; they shall be communicated, with a copy of
the appointment, to the party, or delivered at the do-
micile of the parties, and to the civil officer, who shall
put his visa on the original.
67.
The civil officer shall, without delay, make men-
tion concisely of the oppositions on the register of
the publications; he shall likewise make mention,
on the margin of the copy of the said oppositions,
of the judgments or acts of renunciation which shall
have been sent to him..
68.
Where opposition has been made, the civil officer
shall not be at liberty to celebrate a marriage, until
he shall have had a renunciation transmitted to him^
upon pain of a fine of 300 francs, together with all
costs.
7i/fe 11.-— Of Acts before the Civil Authorities. 21
69.
If there has been no opposition, a memorandum
thereof shall be made in the act of marriage ; and
where publications have been made in several com*
munes, the parties shall transmit a certificate from
the civil officer of each commune, certifying that
there is no opposition.
70.
The civil officer shall cause to be transmitted to
him the act of birth of each party about to be mar-
ried. Where either party shall be unable to produce
it to him, its place may be supplied by showing an
act of notoriety delivered by the magistrate at the
parties' -place of birth, or at that of his domicile.
71.
The act of notoriety shall contain the declaration
of seven witnesses of either sex, relations or otherwise,
the Christian names, surnames, profession, and domi-
cile of the future husband or wife, and those of
the father and mother, if they are known ; the place,
and as nearly as possible, the date of birth, and the
causes which prevent the producing of the act of
birth. The witnesses shall sign the act of notoriety
with the magistrate ; and if there are any witnesses
who are unable or too ignorant to sign their names,
mention shall be made of that circumstance.
72.
The act of notoriety shall be presented to the
court of first instance in the place where the mar-
22 Bouk I.---OJ Persons.
riage is to be celebrated. The court, after having
heard the commissioner of the governdient, shall
give or refuse its approval accordingly,, as it shaU ficMi
the declarations of the witnes^s, and the causea
which prevent the production of the act of birth sul^
ficient or insufficient.
78.
The authentic act of the consent of fathers and
mothers^ or of grandfathers snd grandmothers, or
in defect of these, that of the famil)>. shall contain
the Christian names, the surnames, the professions^
arid domiciles of the future hnsband, or wife, and of
all those who shall have concurred in the act, together
with their degree of relationship.
74.
The marriage shall be celebrated in the commune
in which one or other of the parties shall be domi-
ciled. This domicile, as regards the marriage, shall
be established by six months' contintied habitation
within the same commune.
75.
On the day appointed by the parties after the in-
terval for the publications, the civil officer tn the
town hall, in the presence of four witnesses^ rektion^i
or otherwise, shall read to the parties the before-
mentioned documents, relating to their condition and
to the formalities of the marriage, and from cap. 6.
title ** Of marriage :'* " On the respectwe rights and
duties of married persons/' He shall receive from each
Title IL— Of Acts before the Civil Authorities. 23
party, in succession, a declaration that they are will-
ing to take each other for husband and wife; he shall
pronounce, in the name of the law, that they are
united in marriage, and he shall forthwith draw up
an act to that eSect.
76.
In the act of marriage shall) be set forth,
1st. The Christian naxnes^ sg^names, professions,
age, place of birth, and doaiiciles of the married
persons ;
2nd. If they are of full age, or miaors ;
3rd. The Christian names, surnames, professions,
and domiciles of the fathers and mothers ;
4th. The consent of t^e fathers and mothers,
grandfathers and grandmotherai, and that of the
&mily, in the oases in which they are requisite ;
5tb. The respectful acts, if any have been made ;
6th. Tbe publications within the different places
of domicile ;
7£h« Tbe oppositions, if any have been made ; the
relinquishment of them, or the memorandum that
no opposition has been made. •
8th. The consent of t\\e contracting parties to
t^kfi eafih o^h^r as husband and wife, and thte de-
claration of th^r union by the public officer ;
9th. The Christian names, surnames, age, pro-
fessiQn99 and domicile? of the witnesses, and their
deplaration whether they are relatiops or allied to the
parties, on which side and in what degree.
24 Book /. — Of Persons.
CHAPTER IV.
Of Acts of Decease.
77.
No interment shall take place without an authority
on paper, free of all expence, from the officer of the
civil power, who is forbidden to deliver it until he
shall have been conducted to the deceased person
to assure himself of the death, and that not earlier
than twenty-four hours after decease, except in cases
otherwise provided for by the regulations of the
police.
78.
The act of death sludl be drawn up by the officer
of the civil power on the declaration of two wit-
nesses. These witnesses shall, if possible, be the two
nearest relations or neighbours; or where a party
shall die out of his own domicile, the person at whose
house the decease shall take place, and a relation or
other person.
79.
The act of death shall contain the Christian names,
surname, age, profession, and domicile of the de-
ceased person ; the Christian name and surname of
the consort, if any, of the deceased, whether living or
dead ; the Christian names, surnames, age, profession,
and residence of the deponents; and if they are rela^
tions, their degree of affinity.
The same act shall contain, moreover, as far as can
Title 11.-^0/ Acts before the Civil Authorities. 95
be ascertained, the Christian names, surnames, pro-
fession, and domicile of the father and mother of the
deceased, and the place of his birth.
80.
In cases of death in the military hospitals, civil or
other public edifices, the governors, directors, mana-
gers, and masters of such edifices, are required to
notify the same, within 24 hours, to the officer of the
civil power, who shall repair to the place to satisfy
himself of the death, and thereupon draw up an act
conformably to the preceding article, upon the de-
- clarations which shall have been given him, and upon
the observations he shall then make.
Registers shall moreover be kept in the aforesaid
hospitals and edifices for the purpose of inserting
such depositions and observations.
The officer of the civil power shall transmit the
act of death to the officer at the last domicile of the
deceased, who shall insert it in the registers.
81.
When any signs or marks of violent death, or of
other circumstances which give rise to suspicion,
shall appear, interment shall not take place imtil an
officer of the police, assisted by a doctor in physic or
smgery, shall have drawn up a statement of the
condition of the body, and of the circumstances rela<*
tive thereto, as well as the information he shall have
been able to collect respecting the Christian name,
surname, age, profession, place of birth, and domicile
of the deceased.
a© Book /:—€>/* Persons.
8i.
The officer of police is required to> transmit fortlu
with to the civil power, at the place where the party
diedi all the informations set forth in his statement^
afler which the act of death shall be reduced to
writing. Th^ officer of the civil power shall trans-
nit a copy thereof ta the officer at the domicile of
the deceased, if known : thia copy shall be inserted
in the registers.
88.
The keepers of the crimhii^ records are required,
»
within ^4 hours after the execution of judgments
inflicting the punishment of death, to transmit to '
the officer of the etvil power at the place^ whef e the
coailemned party shall have been executed, all the
informations enumerated in the 79th article, a^er
which the act of death shall be reduced to writing.
84.
In case of death in prisoiiui or houses of aoolusion
and detention, intimation thereof shall immediately
be given, by the gaolera and keepers, to the officer
of the civil power, who shall repair thither^as directed
in article 80, and shall reduce to wilting the act af
deatth.
8$,
Jn all <;»p^ pj^ death, by violence,, or i^ prisops ftftti
l^Qme^ of s^cIhsiqp, or by executiQlli qo n^pntipn sh^U
b^ Qiade in th^ registers of these circutqstances, hut
th^ 9^^tfi of death shall be 4!*9wn up siipply in the
form prescribed by article 79*
Titk IT.— Of Acts b^ore the Civil Authorities, m
861.
In case of death during a sea*voyagei an act shall
be drawtr up within 84 hours^ in presence of two
witnesses* selected from the officers of the vessel, or
in defect of them, from among the ship's crew. This
act shall be engrossed, in manner following, on board
government ships, by the officer for the administra-
tion of the marine, and on board vessels belonging to
a merchant or .privateers, by the captain, master, or
commander of the vessel. The act of death shall be
inserted at the end of the roll of the ship's crew.
At the first port where a vessel shall touch, whe-
ther to refit, or for any other cause except to unload,
the officers for the administration of the marine,
the captain, master, or commander, who shall have
committed to writing the acts of death, are required
to deposit two copies thereof conformably to article
60. On the arrival of a vessel at her unloading port,
the roll of the ship's crew shall be deposited in the
office of the prefect of maritime inscription; he
shall transmit one copy, with his signature, to the
officer of the civil power at the domicile of the de-
ceased person : this copy shall be forthwith inserted
in the registers.
/
28 Book I.-^f Persons.
CHAPTER V.
Of Acts of the Civil Power regarding the Military
out of the Territory of the Republic .
88.
Acts of a civil nature done out of the territory of
the republic, concerning the military or other per-
sons attached to the army, shall be committed to
writing in the forms prescribed by the preceding re-
gulations ; saving the exceptions contained in the
following articles.
89.
The quarter-master in every corps, consisting of
one or more battalions or squadrons, and the captain-
commandant in other corps, shall discharge the
functions of the officers of the civil power ; the same
functions shall be discharged for officers without
troops, and for persons attached to the army, by the
inspector at reviews belonging to the army, or to a
division of the army.
90.
With every body of troops, a register shall be kept
of acts of a civil nature relative to individuals of the
corps, and another with the staff-officer of the army,
or division of the army, for acts of a civil nature re-
lative to officers without troops, and all others at-
tached to the army; these registers shall be preserved
in the same manner as other registers of the coi*ps
and staff, and deposited among the archives of the
Tiik IL^^fActs before the Chil Authorities. 29
war, on the re-entrance of such corps or anny into
the territory of the republic.
91.
The registers shall be indorsed and marked, in
every corps, by the commanding oflScer ; and among
the staff by the chief officer of the staff.
■
92.
Declarations of birth in the army shall be made
within 10 days succeeding the delivery.
93.
The officer charged with the custody of the civil
register must, within 10 days following the inserting
of an act of birth in the said register, address an ex-
tract from it to the civil officer at the last domicile
of the father of the child, or of its mother, if the
father is unknown.
94.
Publications of marriage among the military and
those employed in the pursuit of arms, shall be made
at their last domicile : they shall be put, moreover,
25 days before the celebration of the marriage, upon
the order of the day of the corps, in the case of in-
dividuals who belong to such corps ; and as regards
officers without troops, and the employes attached to
them, upon that of the army or division of the army.
95.
Immediately after the insertion in the register of
the act of celebration of marriage^ the officer charged
80 Book li-^f Persons.
with the custody of such register tbttt transmit a
»
copy thereof to the civil dfficer at the last domicile
of the married persons.
96.
The acts of death shall be drawn up, in every
corps, by the quarter-^ina^er ; and in case of officers
without troops, and their employes, by the inspector
at reviews of the army on the attestation of three
'witnesses ; and an extract from these registers shall
be transmitted/ within ten days, to the civil officer at
the deceased's last domicile.
'91.
'In case of death in military hospitals, removeable
or stationary, the act thereof shdU be drawn up by
the director of the said hospitals, and sent to the
quarter-master df the corps, or to the inspector at
reviews of the army or division of the army df which
the deceased formed part; these officers shall forward
acopytherebf ta the dvil officer at the last domicile
of 4:he deceased.
98.
The civil officer to whom a copy of any act of a
civil nature shall have been transmitted from the
army, is required forthwith to inscribe it on the re-
gisters.
Titk fl'L-^Of'Dofnicile. 91
CfiAPl*ER VI.
m
Of the Amendments of' Acts of a Civil Nature.
When the amendment of an act of a civil nature
shall be demanded, it shsill be decreed accordingly,
saving an appeal, by a compet6tit'tfibunal, and on
the request of the commissioner of government.
Parties interested shall be sutntnoned^ if there be
ground.
100.
A judgment of amendment shall not at any time
be objected to parties interested who shall not have
demanded it, or ^o shall not have been ^uitimoned
thereto.
101.
Judgments of amendirifent shall be inscribed upon
the registers by the civil oflBcfir, as so5n a? they shall
have been transmitted fo him; dnd ttentibnr th^f e6f
shall be made t^n diemdrgiti of the Sme^deid ^t.
TIT^te III.
OF DOMICILE.
becfeed i4<A March, 1803. Prbmdgukid 24lit bfthe idmemrtAh.
102.
The domicile of every Frenchman is, as far as
regards the exercise of his civil rights, in that place
where he has his principal establishment.
82 Book L^-^f Persons.
103.
The change of domicile shall be effected by the
circumstance of a real habitation in another place,
accompanied by an intention of fixing a principal
establishment in such latter place.
104.
Proof of such intention shall be collected from an
express declaration, made as well to the magistrates
of the place which the party shall quit, as to those
of the place to which he shall have transferred his
domicile.
106.
In default of express declaration, proof of inten-
tion shall depend on circumstances.
106.
A citizen called to a public office, temporary or
revocable, shall preserve his former domicile, unless
he has manifested a contrary intention.
107.
The acceptance of offices, bestowed for life, shall
import an immediate removal'of the functionary's
domicile to the place where he is to exercise his
office.
108.
A married woman has no domicile but that of her
husband. A minor not emancipated shall have his
Titk Ill.^^f Domicile. 88
domicile with his father, mother^ or guardian ; one of
full age, placed under restraint, shall have his with
his legal committee.
109.
Persons of full age who constantly serve or labour
at the houses of others, shall have the same domicile
as the persons with whom they serve or labour, pro-
vided they lodge also under the same roof.
110.
The place where an inheritance shall open, is to
be determined by the domicile.
111.
When an act shall contain, on behalf of the parties,
or one of them, an election of domicile for the execu-
tion of the same act in a different place from that of
the real domicile, the notifications, demands, and
proceedings, relative to such act, may be made at the
domicile agreed on, and before the judge of that
place.
S* Book I.—Of Persons.
TITX.E IV.
OF ABSENT PERSONS.
Decreed ISih of March, 1803. PrtmidgaUd 2bik of the
same Month,
CHAPTER I.
Of Presumption of Absence.
lis.
If there be necessity to provide for the administra-
tion of the whole or part of the effects, left by a
person presumed absent, or who has no accredited
agent, a decree shall be therefore made by, a court
of first instance, on the petition of the parties inter-
ested.
113.
The court, on ^he request of the most diligent
party, shall appoint a notary to repYesent the pre-
sumed absentees, as to inventories, accounts, distri-
bution, and payments, in which they shall be
interested.
114.
The public ministry is specially charged to watch
over the interests of persons presumed absent ; and
shall be heard upon all actions which concern them.
Title IV.— Of absent Persons. 35
CHAPTER II.
Of the Declaration of Absence*
115.
Wherever a person shall have ceased to appear at
the place of his domicile or residence, and where no
tidings shall have been heard of him during four
years ; the parties interested may make application
to a court of first instance in order that his absence
may be declared.
116.
In order to verify the absence, the court shall,
after the production of papers and documents, give
order that an inquiry be made peremptorily with
the commissioner of the government, in the circle
of the domicile or actual residence, if they are distinct
from each other.
117.
The court, in adjudging upon such application,
shall moreover have regard to the motives of absence,
and to the causes which may have prevented the
reception of tidings respecting the individual pre-
sumed absent.
118.
The commissioner of the government shall, imme-
diately upon their being given, transmit all j udgmen ts,
as well interlocutory as final, to the chief ju(Jge, the
minister of justice, who shall make them public.
36 Book I. — Of Persons.
119-
The judgment, declaratory of absence, shall not be
given until the expiration of ayear after that directing
an inquiry.
CHAPTER III.
Of the Effects of Absence.
SECTION I.
Of the Effects of Absence, as respects the Properti/ possessed by
the Absentee at the Date of his Disappearance,
120.
In cases where an absent person shall not have left
a procuration for the administration of his property,
his heirs presumptive at the date of his disappearance,
or at the date of the last tidings respecting him, are
empowered, by virtue of a definitive judgment de-
claring his absence, to take upon themselves provi-
sional possession of the property which belonged to
the absentee at the date of his departure, or of the
last tidings respecting him, on condition of giving
security for the fidelity of their administration.
121.
If the absentee have left behind him a procuration,
his heirs presumptive shall not be at liberty to prose-
cute a declaration of absence, or to enter upon pro-
visional possession, until after the lapse of ten years
from the disappearance, or the last tidings respect-
ing him.
Title IV.— Of absent Persons. 87
122.
The same rule shall prevail where the procuration
is extinguished ; and, in such case, provision shall be
made for the administration of the property of the
absentee, as directed in the 1st chapter of the pre-
sent title.
128.
When the heirs presumptive shall have obtained
provisional possession, the will, if any exists, shall
be opened on the requisition of the parties interested,
or of the commissioner of government in the court ;
and the legatees, donees, as well as all those who have
any claims upon the property of the absentee, con-
tingent upon his death, are empowered to exercise
such claims provisionally, on condition of giving .
security.
124.
The married party in community desirous of the
continuance thereof, may prevent the provisional
possession and the provisional exercise of all rights
subject to the contingency of the death of the ab-
sentee, and take, or retain by preference, the ad-
ministration of the property of the absentee. If the
spouse demand provisional dissolution of the commu-
nity, he shall exercise his claims, and all his legal
and conventional rights, on condition of giving se-
curity for things susceptible of restitution. The
Wife, after exercising an option for the continuance
of community, may still renounce it subsequently.
38 Book L'^^f Persons.
125.
Provisional possession shall only be regarded as a
trust which shall confer on those who obtain it the
administration of the property of the absentee, and
which shall render them accountable to him, in case
of his re-appearance, or the receipt of tidings re-
specting him.
126.
The parties obtaining provisional possession, or
the spouse who shall have elected a continuance of
community, must cause an inventory to be made of
the moveable effects and papers of the absentee, in
presence of thecommissionerof the governmentof the
court of first instance, or of a justice of the peace
required by the said commissioner.
The court shall order, if there be foundation
for doing so, a sale of the whole or part of the
moveable effects. In case of sale, the produce shall
be employed, as of goods fallen to the party.
Those who obtain provisional possession are em-
powered to demand, for their own security, that, the
proceeding be conducted by a man of skill, nominated
by the court, to view the immoveable property, in
order to verify its condition. This report shall
be allowed in presence of the commissioner of the
Government, the costs of which shall be paid from
the property of the absentee.
127.
They who, by means of provisional possession, or
of legal administration, shall have obtained the pro-
Title IV.— Of Absent Persons. 3d
perty of the absentee, shall only be bound to render
to him the fifth part of his revenues, in case he shall
re-appear within fifteen complete years from the day
of his disappearance ; and the tenth part, in case he
shall not re-appear until after fifteen years.
After thirty years* absence, the whole of his re-
venues shall belong to them.
128.
None of those who shall have obtained property
only by virtue of provisional possession, shall be at
hberty to alienate or pledge the immoveable pro-
perty of the absentee. •
129.
Where the absence has continued during thirty
years from the provisional possession, or from the
date at which the spouse in community shall have
taken upon him the administration of the property
of the absentee, or where a hundred years shall have
elapsed since the birth of the absentee, the securities
shall be discharged : all those who have claim may
demand a distribution of the property of the absentee,
and have the provisional possession pronounced finals
by the court of first instance. *
130.
A succession to the absentee shall be opened from
the day of his decease proved, for the benefit of his
next heirs at that date ; and thisy who shall have
obtained the goods of the absentee, are required to
restore them, with reservation of the fruits acquired
by them, by virtue of article 127.
40 Book /. — Of Persons.
131.
If the absentee re-appears, or if his existence is
proved during provisional possession, the effects of
the judgment which shall have declared his absence
shall cease : without prejudice if there be ground to
the precautionary measures prescribed in the first
chapter of the present title for the administration of
his goods.
182.
If the absentee re-appears, or if his existence is
proved, even after final possession, he shall recover
his property in the state in which it shall then be,
the price of that part of it which shall have been
sold, or the profits accruing from the employment
which shall have been made of the price of his pro-
perty sold.
133.
The children and direct descendants of the ab-
sentee are empowered equally, within thirty years to
be computed from final possession, to demand resti-
tution of his property, as is mentioned in the prece-
ding article.
134.
After the judgment declaratory of absence, every
person who shall have claims to exercise against the
absentee shall prosecute them against those only who
shall have been part in possession of his property, or
who shall have the legal administration thereof*
Title IV. — Of absent Persons. 41
SECTION II.
Of the Effects of Absence, with regard to eventual Rights vohich
may belong to the Absentee,
135.
Whoever shall claim a right fallen to an individual
whose existence shall not be known, must prove tliat
the said individual was alive when the right was
open : until such proof, he shall be declared incapable
of being admitted to sue for it.
136.
If a succession opens to which an individual shall
be called whose existence is not known; it shall de-
volve exclusively upon those with whom he would
have had a right to put in his claim, or upon those
who shall be entitled to the succession in his default
137. •
The regulations of the two preceding articles shall
take place without prejudice to the suits or petition
of inheritance and other rights which shall belong to
the absentee or to his representatives or assigns^
and shall only be extinguished by the lapse of time
established for prescription.
138.
As long as the absentee shall fail to appear, or that
actions shall fail to be brought in his right, those
who shall have gained the succession, shall enjoy
the fruits bona fide received by them.
42 Book L'-'-Qf Persons.
SECTION III;
Of the Effects ofMience, as they relate to Marriage.
139.
The absent spouse whose consort shall have con-
tracted a new union, shall alone be admissible to
impeach such marriage in person or by attorney
furnished with proof of his existence.
140. .
If the absent spouse has not left relations capable
of succeeding to him, the consort may petition to be
put into provisional possession of his property.
CHAPTER IV.
Of the Superintendence of Minors whose Father has
disappeared.
141.
If a father has disappeared leaving children minors
the issue of a common marriage, the mother shall
have the superintendence of them, and she shall ex-
ercise all the rights of her" husband, as regards their
education and the administration of their property.
142.
Six months after the father's disappearance, if
the mother were dead at the time of such disappear-
ance^ or if she shall die before the absence of the
father is declared, the superintendence of the
children shall be yielded up by the family council,
Title v.— Of Marriage. 4S
to the nearest relation in the ascending line, and in
their default to a provisional guardian.
143.
The same shall be done in the case where one of
the spouses who shall have disappeared, shall leave
children under age the issue of a former marriage*
TITLE V.
OF MARRIAGE.
Decreed the 1 7th of March, 1803. PromulgaUd 27th of the
same Month,
CHAPTER I.
Of the Qualities and Conditions required in order to be
able io contract Marriage.
144.
A man before the age of 18, and a woman before
15 complete, are incapable of contracting marriage.
145.
The government shall be at liberty nevertheless,
upon weighty reasons, to grant dispensations of age.
146.
There can be no marriage where consent is want*
ing.
147.
A second marriage cannot be contracted previ-
ously to the dissolution of the first.
44 Book I. ---Of Persons*
148.
The son who has not attained the full age of 25
years, the daughter who has not attained the full age
of 21 years, cannot contract marriage without the
consent of their father and mother; in case of dis-
agreement, the consent of the father is sufficient.
149.
If one of the two be dead, or under an incapacity
of manifesting his or her will, the consent of the
other is sufficient.
150.
If the father and mother are dead, or if they are
under an incapacity of manifesting their will, the
grandfathers and grandmothers shall supply their
place; if there be a disagreement between the grand-
father and grandmother of the same line, the consent
of the grandfather shall suffice.
If the disagreement be between the two lines, this
division shall import consent.
151.
Where the children of a family have attained the
majority fixed by article 148, they are required, pre-
viously to contracting marriage, to demand, by a re-
spectful and formal act, the advice of their father
and mother, or that of their grandfathers and grand-
mothers when their father and mother are dead, or
under an incapacity of manifesting their will.
Title V.-^Of Marnage. 45
jirikles 152, 3, 4, 5, 6, and 7, tiecreed l2thqfMarchy 1824, Pro-
mulgaied 22d of the same Month,
152.
From the majority fixed by article 148 to the age
of SO years completed for sons, and until the age of
25 years completed for daughters, the respectful act
required by the preceding article and on which con-
sent to marriage shall not have been obtained, shall
be renewed two seVeral times, from month to month;
and one month after the third act it shall, be lawful
to pass on to the celebration of the marriage.
153.
After the age of 30 years, it shall be lawful, in
default of consent, upon a respectful act, to pass on,
after the expiration of a month, to the celebration of
the marriage.
154.
The respectful act shall be notified to such person
or persons of the ascending line as are pointed out in
article 151, by two notaries, or by one notary and
two witnesses ; and in the statement which shall be
drawn up thereof, mention shall be made of the
answer.
155.
In case of the absence of the ancestor to whom
the respectful act ought to have been made^ the
celebration of the marriage may be proceeded in, on
producing a judgment given declaring absence, or in
default of such judgment that which shall have di-
46 Book L'-^f Persons.
rected an inquiry, or if such latter judgment shall not
yet have been pronounced, an act of notoriety deli-
vered by the justice of the peace of the place where
the ancestor had his last.kno\^n domicile. This act
shall contain the deposition of four witnesses ofiScially
summoned by the justice of the peace.
166.
The oflScers of the civil power who shall have pro-
ceeded to the celebration of marriages contracted by
sons not haying attained the full age of twenty- five
years, or by daughters not having attained the full
age of twenty-one years, without having the consent
of the fathers and mothers, that of the grandfathers
and grandmothers, and that of the family, in a case
requiring them, declared in the act of marriage, shall,
on the prosecution of the parties interested^ and of
the government commissioner in the tribunal of first
instance of the place where the marriage shall have
been celebrated, be condemned to the fine inflicted
by article 192, and further to an imprisonment,
whose duration shall not be less than six months.
167.
Where respectful acts shall have been omitted
to be made in cases in which they are prescribed,
the civil officer who shall have celebrated the mar-
riage, shall be condemned to the same fine, and to
an imprisonment of not less than one month.
158.
*
The regulations contained in articles 148 and 149»
and those of articles 151, 158, 153, 154, and 155,
Title v.— Of Marriage. 47
relative to the respectful act required to be made
to the father and mother in the case contemplated
by those articles^ are applicable to natural children
legally recognised.
159.
The natural child who has not been acknowledged,
and the child who after having been so, has lost his
father and mother, or whose father and mother are un-
able to manifest their will, shall not be at liberty, be-
fore the full age of twenty-one years, to marry without
the consent of a guardian ad hoc, who shall be no-
minated for him.
160.
If there is neither father nor mother, neither
grandfathers nor grandmothers, or if they are all
found to be under an incapacity of manifesting their
will, male or female children under the age of twenty-
one years cannot contract marriage without the
consent of a family council.
161.
In a direct line, marriage is prohibited between
all the ascending and descending branches legitimate
or natural, and the kindred in the same line.
162.
In the collateral line, marriage is prohibited be-
tween brother and sister, legitimate or natural, and
the kindred of the same degree.
163.
Marriage is further prohibited between the uncle
and the niece, the aunt and the nephew.
48 Book L^'^f Persons.
164.
It shall be lawful, nevertheless, for the govern-
ment, on weighty grounds, to remove the prohibitions
contained in the preceding article.
CHAPTER IL
Of the Formalities relative to the Cdebration of
Marriage.
165.
The marriage shall be celebrated publicly, before
the civil officer of the domicile of one of the two
parties.
166.
The two publications directed by article 63, under
the title " Of the acts of the civil p(mer^^ shall be
made to the municipality of the place where each of
the contracting parties shall have his domicile.
167.
Neverdieless, where the actual domicile is only
established by six months' residence, the publication
shall be further made to the municipality of the last
domicile.
168.
If the contracting parties, or one of them, is or
are, as regards the marriage, under the power of
others, the publications shall besides be made to the
fliunicipality of the domicile of those, under whose
power they are found to be*
Title V.^Of Marriage. 49
169.
The government^ or those to whom it shall give
ch^ge to this effect, shall be at liberty, on weighty
reasons, to dispense with the second publication.
170.
A marriage contracted in a foreign country be-
tween natives of France, and between a native of
France and a foreigner, shall be valid, if celebrated
according to the forms used in that country, provided
that it has been preceded by the publications pre-
scribed in article 63, under the title " Of acts of the
civil power,'* and that the Frenchman has not in-
fringed the regulations contained in the preceding
chapter.
171.
Within three months after the return of a French-
man into the territory of the republic, the act of the
celebration of marriage contracted in a foreign coun-
try, shall be transcribed into the public register of
marriages, at the place of his domicile.
CHAPTER III.
Of Oppositions to Marriage.
172.
Hie right of opposing the celebration of marriage
belongs to the person connected by marriage with
<Hie of ike two contracting parties.
E
50 Book I. — Of Persons.
ITS.
The father, and in default of the father, the mo*
ther, and in default of the father and mother, the
grandfathers and grandmothers, may oppose the
marriage of their children and descendants, although
they have accomplished twenty-five years.
174.
In default of ancestors, the brother or sister, the
uncle or aunt, cousin or cousins german, being of
age, can make no opposition except in the two fol-
lowing cases :
1st. Where the consent of the family-council, re-
quired by article 160, has not been obtained.
2nd. Where the opposition is founded on a state of
insanity in the future spouse : This opposition, of
which the court is empowered to pronounce the pure
and simple abrogation, shall never be received except
on condition by the opponent of urging the interdic-
tion, and causing a decree to be made thereon, within
the interval which shall be fixed by the judgment.
175.
In the two cases contemplated by the preceding
article, the guardian or curator shall not, during the
continuance of the guardianship or curatorship, make
opposition, except so far as he shall have been au-
thorizJed by a family-council, which he is at liberty
to convoke.
176.
Every act of opposition shall set forth the quality
which gives to the opponent the right to make it ;
Title v.— Of Marriage. 51
it shall contain the election of domicile in the place
where the msrriage is to be celebrated ; it shall, in
like manner, unless it be made at the request of an
ancestor, contain the motives of opposition : the
whole on pain of nullity, and of suspension of the
ministerial officer, who shall have signed the act con-
taining the opposition.
177.
The tribunal of first instance shall pronounce
within ten days, on the petition for revocation.
178.
If an appeal be made, a decision shall be made
thereon within ten days from the citation.
179.
If the opposition be rejected, the opponents, other
nevertheless than ancestors, may be sentenced to*
damages.
CHAPTER IV.
Of Petitionsfor Nullity of Marriage.
180.
A marriage contracted without the free consent
of the married persons, or of one of them, can only
be impeached by the married persons, or such one
of them whose consent has not been free.
Where a mistake has occurred in the person, the
marriage shall only be impeached by such one of the
married persons as may have been led into the erron
£ 2
52 Book I. — Of Persons.
181.
In the case mentioned in the preceding article^
the petition of nullity is no longer admissible, where-
ever* there has been cohabitation continued during
six months after the married person has acquired
full liberty, or after discovery made of the error.
182.
A marriage contracted without the consent of the
father and mother, of the ancestors, or of the family
council, in cases where such consent was necessary,
can only be impeached by those whose consent was
requisite, or by such of the two married persons as
stood in need of that consent.
183.
A suit for nullity is no longer maintainable either
by the married persons, or by the relations whose
consent was required, in those cases where the mar-
riage has been approved, either expressly or tacitly,
by those whose consent was necessary ; or when a
year has elapsed without complaint on their part,
subsequently to their knowledge of the marriage.
Such suit is no longer maintainable by a spouse, after
the lapse of a year without complaint on his part,
subsequently to his having attained the competent
age for consenting to the marriage in his own person.
184.
Every marriage contracted in contravention of
the regulations contained in articles 144, 147, 161»
Title V.-'Of Marriage. 53
2 and 3, may be impeached either by the married
parties themselves, or by those who have an interest
therein, or by the public authorities.
185.
Nevertheless a marriage contracted by parties who
have not yet reached the required age, or of whom
one has not attained that age, is no longer liable
to be impeached, 1st, where six months have expired
since the married person or persons have attained the
competent age ; 2nd, where the woman not having
reached that age has conceived before the expiration
of six months.
186.
The father, the mother, the ancestors, and the
family having consented to a marriage contracted
under the circumstances mentioned in the preceding
article, are inadmissible as plaintiffs in a suit for
nullity.
187.
In all those cases where, conformably to article
184, a suit for nullity may be instituted by all those
who have an interest therein, such suit shall not
be maintained by collateral relations, or the children
born^ of another marriage of the survivor of the
parties^ but only where they have an actual and ex-
isting interest therein.
188.
The married party, to the prejudice of whom a
second marriage has been contracted, may demand
54 Book I. — Of Persons.
the nullity thereof, even during the life of the party
who was engaged with him.
189.
If the new married parties oppose the nullity of
the first marriage, the validity or nullity of such
marriage must be decided previously.
190.
The commissioner of government may and shall,
in all cases to which article 184 can be applied, and
subject to the modifications contained in article 185^
demand the nullity of the marriage, living the two
married persons, and cause them to be sentenced to
separation.
191.
Every marriage not publicly contracted, and not
celebrated before the competent public officer, may
be impeached by the married parties themselves, by
the father and mother, by the ancestors, and by all
those who have an actual and existing interest
therein^ as well as by the public authorities.
192.
If the marriage has not been preceded by the two
publications required, or if the dispensations per-
mitted by the law have not been obtained, or if the
intervals prescribed between the publications and
celebrations have not been observed, the commis-
sioner shall cause a fine to be awarded iigainst the
Title v.— Of Marriage. 55
public officer, which shall not exceed 300 francs ; and
against the contracting parties, or those under whose
control they have acted, a fine proportioned to their
fortune.
193.
The punishments awarded in the preceding article
shall be inflicted on the persons designated therein,
for every contravention of the rules prescribed by
article 165, even though such contraventions shall
not be adjudged sufficient, whereon to pronounce a
nullity of the marriage.
194.
No person shall be at liberty to claim the title of
spouse, and the civil consequences of marriage,
unless upon the production of an act of celebration
inscribed upon the register of the civil power, saving
the cases provided for by article 46, under the title
" Of acts before the civil authorities!*
195.
The actual existence of marriage shall not dis-
charge the pretended spouses, who shall respectively
claim to be such, from producing the act of celebra-
tion of marriage before the officer of the civil power.
196.
Where there is an actual marriage, and the act of
celebration of marriage before the officer of the civil
power is produced, the^married parties are respec-
tively incapable of suing for a nullity of this act.
56 Book I.-^Of Persons.
197.
Where nevertheless, in the cases of articles 194
and 19^ there are children, the issue of two indivi-
duals who have lived publicly together as husband
and wife, and who are both deceased, the legiti-
macy of such children cannot be contested on the
single ground of the non-production of the act of
celebration, whenever such legitimacy is proved by
an actual marriage uncontradicted by the act of birth*
198.
When the proof of a legal celebration of marriage
is acquired by the result of a criminal procedure*
the insertion of the judgment on the registers of the
civil power confirms to the marriage, computing from
the day of its celebration, all its civil consequences,
as well as regards the married parties as the children
the issue of such marriage.
199.
If the married parties are dead, or one of them^
without having discovered the fraud, the criminal
suit may be instituted by all those who have interest
in causing the marriage to be declared valid, and
by the commissioner of government.
SOO.
If the public ofiicer is dead at the time of the dis-
covery of the fraud, the action shall be carried on
in a civil form against his heirs by the commissioner
of government, in the presence of the parties in-
terested and on their accusation.
Title v.— Of Marriage. 57
sol.
A marriage which has been declared null draws
after it, nevertheless, civil consequences, as well with
regard to the married parties as to their children,
where the. marriage has been contracted in good
faith.
202.
Where good faith exists only on the part of one of
the married persons, the marriage is only attended
by civil consequences in favour of such persons, and
the children of the marriage.
CHAPTER V.
Offfie OMigations accruing from Marriage.
203.
Married persons contract together, by the single
act of marriage, the obligation of nourishing, sup-
porting, and bringing up their children.
204.
A child has no action against his father and
mother for an establishment in marriage or otherwise.
£05.
Children owe a maintenance to their fathers and
mothers, and other ancestors who are in want
thereof.
58 Book L — Of Persons.
206.
Sons and daughters*in-law owe equally, under the
same circumstances, a maintenance to their fathers
and mothers-in-law } but this obligation ceases, 1st,
when the mother-in-law has married again; Snd,
when such of the married parties as produced the
affinity, and the children, the issue of the union with
the other party, are dead.
207.
The obligations resulting from these regulations
are reciprocal.
208.
Maintenance is only accorded in proportion to
the necessity of the party who claims it, and to the
fortune of the party who owes it.
209.
When he who supplies or he who receives main-
tenance is placed in such a situation, that the one
can no longer give, or the other has no longer a
need thereof, in whole or in part, a discharge or
reduction thereof may be demanded.
210.
If the person who is bound to supply maintenance
can show that he is unable to pay an alimentary
pension, the court shall, on bein^ made acquainted
with the cause, give order that he shall receive into
his house, and there nourish and support, the party
to whom he owes maintenance.
Title V.-^f Marriage. 59
•
211.
The court shall, in like manner, adjudge, whether
a father or mother who shall offer to receive, nourish,
and support within the house, a child to whom they
owe maintenance, ought in this case to be discharged
from paying an alimentary pension.
CHAPTER VI.
Of the respective Rights and Duties of Married
Persons.
212.
Married persons owe to each other fidelity, suc-
cour, assistance.
213.
The husband owes protection to his wife, the m£e
obedience to her husband.
214.
The wife is obliged to live with her husband, and
to follow him to every place where he may judge it
convenient to reside : the husband is obliged to re-
ceive her, and to furnish her with every thing ne-
cessary for the wants of life, according to his means
and station.
215.
The wifi^ cannot plead in her own name, without
the authority of her husband, even though she should
be a public trader, or non-communicant, or separate
in property.
60 Book I.-^Of Persons.
216.
The authority of the husband is not necessary
when the wife is prosecuted in a criminal matter, or
relating to police.
217.
A wife, although non-communicant or separate in
property, cannot give, alienate, pledge, or acquire
by free or chargeable title, without the concurrence
of her husband in the act, or his consent in writing.
218.
If the husband refuse to authorize hi^ wife to plead
in her own name, the judge may give her authority.
219.
If the husband refuse to authorize his wife to pass
an act, the wife may cause her husband to be cited
directly before the court of first instance, of the
circle of their common domicile, which may give or
refuse its authority, after the husband shall have
been heard, or duly summoned before the chamber
of council.
220.
The wife, if she is a public trader, may, without
the authority of her husband, bind herself for that
which concerns her trade ; and in the said case she
binds also her husband^ if there be a community
between them.
She is not reputed a public trader, if she merely
retail goods in her husband's trade, but only when
she carries on a separate business.
Title V.-^Of Marriage. 61
2S1.
When the husband is subjected to a condemnation,
carrying with it an afflictive or infamous punishment,
although it may have been pronounced merely for
contumacy, the wife> though of age, cannot during
the continuance of such punishment plead in her
own name or contract, until after authority given
by the judge, who may in such case give his autho-
rity, without hearing or summoning the husband.
222.
If the husband is interdicted or absent, the judge,
on cognizance of the cause, may authorize his wife
either to plead in her own name or to contract.
228.
Every general authority, though stipulated by the
contract of marriage, is invalid, exc^t as respects
the administration of the property of the wife.
224.
If the husband is a minor, the authority of the
judge is necessary for bis; wife, either to appear in
court, or to contract.
225.
A nullity, founded on dofect of authority, can
only be opposed by the wife, by the husband, or by
their heirs.
The wife may make a will without the authority
of her husband.
6a Book I.^^f Persons.
CHAPTER VII.
Of the Dmobttian of Marriage.
227.
Marriage is dissolved,
1st. By the death of one of the parties ;
Sd. By divorce lawfully pronounced ;
3d. By condemnation become final of one of
the married parties to a punishment implying civil
death.
CHAPTER VIIL
Of second Marriages.
228.
A woman cannot contract a new marriage until
ten months have elapsed from the dissolution of the
preceding marriage.
TITLE VI.
OF DIVORCE.
Decrted 2Ut Marckf 1803. PnmulgtUed 31i# rftke same month.
CHAPTER I.
0/ the Causes of Divorce.
229.
The husband may demand a divorce on the ground
of his wife's adultery.
Title VL— Of Divorce. 68
230.
The wife may demand divorce on the ground of
adultery in her husband, when he shall have brought
his concubine into their common residence.
231.
The married parties may reciprocally demand
divorce for outrageous conduct, ill-usage, or grievous
injuries, exercised by one of them towards the
other.
232.
The condemnation of one of the married parties
to an infamous punishment, shall be to the other a
ground of divorce.
233.
The mutual and unwavering consent of the mar-
ried parties^ expressed in the manner prescribed by
law, under the conditions, and after the proofs which
it points out, shall prove sufficiently that their com-
mon life is insupportable to them ; and that there
exists, in reference to them, a peremptory cause of
divorce.
64 Book I. — Of Persons.
CHAPTER 11.
Of the Divorce for Cause determinate*
SECTION I.
Of the Forms qfthe Divorce for Ckiuse determinate.
2S4.
Whatever may be the nature of the facts or
offences wliich afford ground for a demand of
divorce for cause determinate, such demand shall
pnly be made to the court of the circle witljiin wbich
ti)e ftip^T^ed persons shall have their domicile.
235.
If any of the facts alleged by the married party
demandant, give ground for a criminal prosecution
OQ the part of the public officers, the action for
divorce shall remain suspended until after Ijhe judg-
ment of the criminal tribunal ; it may then be
resumed, without permitting any objection or excep-
tion at law to be drawn from the criminal judgment
prejudicial to the married party demandant.
S36.
Every petition for divorce shall detail the facts ;
it shall be sent back, with the corroborating docu-
ments, if there are any, to the president of the court,
or to the judge who shall perform his functions, by
the married party demandant in person, unless pre-
Titie VL— Of Divorce. 65
vented by illness ; in which case, on his request, and
the certifica^te of two doctors of physic or. surgery
or of two officers of health, the magistrate shall re-
pair to the residence of the demandant there, to
receive his petition.
287.
The judge after having heard the petitioner, and
having made to him such observations as he shall
deem suitable, shall mark the petition and the docu-
ments^ and draw up a statement that the whole has
been placed in hi3 hands. This statement shall be
signed by the judge and by the petitioner^ unless
the latter is ignorant or unable to write, in which
case mention shall be made thereof.^
«
238.
The judge shall make order, at the foot of his
statement, that. the. par ties shall appear in person
before him, at the day and hour that he shall point
out ; and to this end, a copy of his order shall be
addressed by him to the party against whom the
divorce i» demanded.
239.
On the day appointed, the judge shall make to the
two married parties, if both* present themselves, or
to the petitioner, if appearing alone, such represen-
tations as he shall deem likely to effect a reconcilia-
tion : if he is unable to accomplish this, he shall draw
€6 Book I. — Of Penom.
up a statement thereof, and sfaall set forth the coM-
munication of the petition tod of the documents to
the commissioner of government, and the report of
the whole to the trihanaL
Within the three following days, the court, on the
report of the president or of the judge Who shall
have exeivcised his functions, and on the motion of
the commissioner of the government, shall iaward or
suspend the permission of citation. The suspension
shall, not exceed the term of twenty days.
241.
The petitioner may, by virtue of the permission
of the court, cause the defendant to be summoned,
in the ordinary form, to appear in person at a private
hearing, within the interval prescribed by law ; he
shall cause a copy to be delivered at the head of his
summons, of the petition of divorce, and of the
documents produced in its support.
242.
At the expiration of the interval, whether the
defendant appear or not, the petitioner in person,
assisted by a counsel, if he shall deem it expedient,
shall unfidd or cause to be unfolded the grounds of
his petition ; he shall produce the documents which
support it, and shall name the witnesses whom he
proposes to have heard.
TiOe Vl.-^f Divorce. 67
248.
If the defendanj; appear ia person or by an autho-
rised agent, he may make his observations or cause
them to be made, as well upon the grounds of the
petition as upon the documents produced by the
petitioner and on the witnesses named by him. The
defendant shall name, on his part, the witnesses
whom he proposes to have heard, and on them the
petitioner in turn shall make his observations.
S44.
A statement shall be drawn up of the appearance,
depositions and observations of the parties, as well
as of the confessions which either may make. The
statement shall be read over to the aforesaid parties,
who shall be required to sign it ; and express mention
shall be made of their signature, or of their declara-
tion of inability or unwillingness to sign.
845.
The; court shall send the parties to a public hear-
ing of which it shall appoint the day and hour ; it
shall direct a communication of the proceeding to
the commissioner of government, and shall appoint
a judge to report. In case the defendant shall not
appear, the petitioner shall be bound to signify to
him the order of the court, within the interval which
it ahall appoint.
246.
At the day and hour appointed, on the report of
the judge nominated, the commissioner of govern-
f2
68 Book I. — Of Persons.
ment being heard, the court shall decree first upon
the exceptioDS of law, if any have^been propounded.
In case they shall be found conclusive, the petition
for divorce shall be rejected : in the opposite case,
or if exceptions of law have not been offered, the
petition for divorce shall be admitted.
S47.
Immediately after the admission of the petition
for divorce, on the report of the judge appointed,
the commissioner of government being heard, the
court shall adjudge fully. It shall give judgment on
the petition, if it appear in a state to be decided
on ; if not, it shall admit the petitioner to proof of
pertinent facts alleged by him, and the defendant to
contrary proof
248.
At every stage of the cause, the parties shall be
at liberty, after the reports of the judge, and before
the commissioner of the government shall have begun
to speak, to propose or cause to be proposed their
respective arguments, first upon exceptions at law
and afterwards upon the merits; but in no case shall
the counsel of the petitioner be heard, unless the
petitioner be present in person.
249.
Immediately after pronouncing . the judgment
which shall direct the inquiries, the registrar of the
court shall read that part of the statement which
contains the nomination already made of the wit-
Title VI.— Of Divorce. 69
nesses whom the parties propose to have heard.
They shall be i»ramed by the president that as yet
they are at liberty to mention others, but that afler
this moment no more can be received.
250.
The parties shall propose at once their respective
exceptions against the witnesses of whom they desire
to get rid. The court shall decide on these excep-
tions after having heard the commissioner of the
government.
251.
The relations of the parties, with the exception of
their children and descendants, cannot be excepted
to on the ground of their affinity, nor can the domes-
tics of the parties by reason of such quality ; but the
court shall have such regard as reason requires to
the depositions of relations and servants.
252.
Every judgment which shall admit a proof by
witnesses shall mention by name the witnesses who
shall be heard, and shall fix the day and hour at which
the parties are to present themselves.
253.
The depositions of the witnesses shall be received
by the court sitting with closed doors, in the presence
of the commissioner of government, of the parties,
and of their counsel or friends to the number of three
on each side.
70 Book /.— Q/" Persons.
254.
The parties by themselves or by their counsel
may make to the witnesses such observations and
examinations as they shall judge suitable^ without
being allowed nevertheless to interrupt them in the
course of their depositions.
855.
Every deposition shall be reduced to writing, as
well as the remarks and observations to which it
shall have given rise. The statement of inquiry
shall be read as well to the witnesses as to the par-
ties : both shall be required to sign it ; and mention
shall be made of their signature, or of their declara^
tion of inability or refusal to sign.
256.
After the close of the two inquiries or of that of
the petitioner, if the defendant has not produced
witnesses, the court shall send the parties to a public
hearing, for which it shall point, out the day and
hour ; it shall order the communication of the pro-
ceeding to the commissioner of government, and
shall appoint a reporter. This order shall be signip
fied to the defendant at the request of the petitioner,
within the interval appointed therein.
257.
On the day fixed for final judgment, a report shall
be made by the judge commissioned: the parties
shall be at liberty afterwards to make by themselves
Title Vl.'-Of Divorce. 71
or by the instrumentality of their counsel, such ob-
servation ^s they shall judge useful to their cause ;
after which the commissioner of government shall
give his arguments.
S58.
Final ju^ment shall be pronounced publicly;
when it shall establish the divorce, the petitioner
shall be authorised to go before the civil officer, m(^
cause him to pronounce it.
259.
When the petition for divorce shall have been
founded on causes of excess, cruelty, or grievous in*
jury, althougl^ they shall be well established, the
judges shall be at liberty not to allow the divorce
immediately. In such case, before judgment is given,
they shall authorise the w^unan to quit the society of
her husband, without being bound to receive faim,
unless she judges it expedient ; and they shall sen-
tence the husband to pay her an alimentary pension
proportioned to his means, if the wife has not herself
sufficient funds to supply her wants.
260.
After a year of trial, if the parties are not re*
united, the married person petitioning shall cause the
other to be cited to appear before the court, within
the intervals prescribed by law, there to hear final
judgment prppo)inced, which shall then allow the
divorce.
72 Book I. — Of Persons.
261.
When the divorce shall be demanded by reason
that one of the married persons is condemned to an
infamous punishment, the only formalities to be ob-
served shall consist of producing before the civil
court a copy in correct form of the judgment of
condemnation, with a certificate from the criminal
court, importing that the said judgment is no longer
liable to be reviewed in any legal way.
262.
In case of appeal from the judgment of admission
or from the final judgment, given by the court of
first instance in a cause of divorce, the cause shall
be prepared for hearing and decided by the court of
appeal, as an urgent affair.
263.
The appeal shall not be receivable except where it
shall have been lodged within three months, to be
reckoned from the day of intimation given of the
judgment rendered on the hearing or by default. The
interval for making application to the court of cassa-
tion against a judgment in the last resort shall also
be one of three months, computing from the intima*
tion. The application shall be suspensory.
264.
By virtue of every judgment given in the last re-
sort or passed with the force of a matter decided,
which shall authorise a divorce, the married person
Title VI.— Of Divorce. 78
who shall have obtained it, shall be obliged to present
himself, within an interval of two months, before the
dvil officer, the other party being duly summoned,
in order to cause him to pronounce the divorce.
265.
These two months shall not begin to run, with re-
gard to the judgments of first instance, until after
the expiration of the interval for the appeal ; with
regard to judgments given for default in matters of
appeal not until after the expiration of the interval
for opposition ; and with regard to peremptory judg-
ments in the last resort, not until after the expiration
of the interval for application for cassation.
266.
The married party petitioner who shall have suf-
fered the interval of two months hereinbefore deter-
mined to pass by, without summoning the other
party before the civil officer, shall forfeit the benefit
of the judgment which has been obtained, and shall
not be permitted to resume his suit for divorce, ex-,
cept for new cause ; in which case the ancient causes
may be insisted on.
SECTION IL
Of the Prornsumal Measures to tokich the Fetition for Divorce for
Cause determinate may give rise.
267.
The provisional management of the children shall
rest with the husband, petitioner, or defendant, in
74 Book L'"'^ Persons.
the suit for divorce, unless it be otherwise ordered
by the court for the grea,ter advantage p{ the chil*
dren, on petition either of the mother, or tb^ faiqily,
or the government commissioner.
268.
The wife, petitioner, or defendant in divorce, shall
be at liberty to quit the residence of her husband
during the prosecution, and demand an alimentary
pension proportioned to the means of the husband.
The court shall point out the house in which the
wife shall be bound to reside, and shall fix, if there
be ground, the alimentary provision which the hus-
band shall be obliged to pay her.
869.
The wife shall be bound to prove her residence in
the bouse appointed, as often as she shall be thereto
required ; in default of such proof, the husband may
refine the alimentary pension, and if the wife is
the petitioner for divorce, may cause her to be de*
dared incapable of continuing her prosecution,
270.
The wife having community of goods, plaintiff or
defendant in divorce shall be at liberty, in every
stage of the cause, commencing with the date of the
order mentioned in article 238, to require, for the
preservation of her rights, that seals should be affixed
to the moveable goods in community. Theye seals
shall not be taken off until an inventory and appraise-
ment is made^ and on the undertaking of the hus-
band to produce the articles contained in the in-
ventory, or to axftswer for their yalue, as their legal
keeper.
371.
Every obligation contracted by the husband at the
expense of the community^ eveiy alienation made
by him of immoveable property dependent upon it,
subsequently to the date of the order mentioned in
article 838, shall be declared void, if proof be given
moreover, that it has been made or contracted in
fraud of the rights of the wife.
SECTION III.
Of Exeepttcm at Lam agahut the Stutjor Divorce far Cause
detertntnaiem
278.
The suit for divorce shall be extinguished by the
reconciliation of the parties, whether occurring sub-
sequently to the facts which might have authorised
such suit, or subsequently to the petition for divorcet
278.
In either case the petitioner shall be declared in*
capable of pursuing the action ; a new one may,
nevertheless, be instituted for cause accruing subse*
quently to the reconciliation, and the ancient causes
may then be employed in support of such new
petition.
7tf Book /.--^Of Persons.
274.
If the petitioner for divorce deny that a reconci-
liation has taken place, the defendant shall make
proof thereof, either in writing or by witnesses, in
the form prescribed in the first section of the
present chapter.
CHAPTER III.
Of Divorce by Mutual Consent.
275.
The mutual consent of married persons shall not
be admitted, if the husband have not reached twenty-
five years, or if the wife be under twenty-one.
276.
The mutual consent shall not be received until
two years from the marriage.
277.
It shall no longer be admissible after twenty years
of marriage, nor where the, wife shall have attained
the age of forty-five years.
278.
In no case shall the mutual consent of married
persons be sufficient, unless authorised by their fa-
thers and mothers, or by their other living ancestors,
according to the rules prescribed in article 150,
under the title " of Marriage.**
Title VL—Of Divorce. 77
279.
Married persons determined to effect a divorce by
mutual consent shall be bound to make previously an
inventory and estimate of all their property move-
able and inmoveable, and to adjust their respective
rights, on which notwithstanding it shall be free to
them to enter into arrangements.
S80.
- They shall be bound in like manner to establish in
writing their agreement on the three points following :
1st. To whom the children, the fruit of their union
shall be intrusted, as well during the period of the
suit, as after divorce pronounced ;
2d. To what house the wife is to retire and reside
in during the period of the suit ;
3d . What sum the husband is to pay to his wife
during the same period, if she has not an income
sufficient to supply her wants;
281.
The married parties shall present themselves
together and in person, before the president of the
civil court of their circle, or before the judge who
shall discharge his functions, and make to him a de-
claration of their desire, in presence of two notaries
brought by themselves.
282.
The judge shall make to both the married parties
together, and to each of them apart, in the presence
78 Book I.'-^Persons.
of the two notaries, such representations and exhor-
tations as he shall deem suitable : he shall read to
them the fourth chapter of the present title, which
regulates " The EjffbcU of Bivwcct^ and shall dis-
close to them all the consequences of the step they
are taking.
283.
If the married parties persist in their resolution,
an act shall be given them, by the judge setting forth
that they demand a divorce and mutually consent to
it ; and they shall be required to produce and deposit
on the instant, in the hands of the notaries, besides
the acts mentioned in articles 279 and 280|
1st. The acts of their birth and that of their mar-
riage;
2d. The acts of birth and of death, of all the
children the fruit of their union ;
3d« An authenticated declaration of their father
and mother or other living ancestors, to the effect,
that for causes to them known, they authorise
him or her, their son or daughter, grandson or
grandaughter married to such or such a person,
to demand divorce and to consent thereto. The
fathers, mothers, grandfathers and grandmothers of
the married parties shall be presumed living until
the production of the acts verify their decease.
284.
The notaries shall draw up at length a detailed
statement of all that shall have been said or done in
Titie VL-'^f Divorce. 79
execution of the preceding articles ; the minute
thereof shall remain with the elder of the two nota*
ries, as well as the documents produced^ which shall
be annexed to the statement, in which mention shall
be made of intimation which shall be given to the
wife to retire within twenty-four hours to the house
agreed on between her and her husband, and to
reside there Until divorce pronounced.
S85.
The declaration thus made shall be renewed within
the first fortnight of the 4th, 7th, and 10th month
following, observing the same formalities. The par-
ties shall be bound each time to bring proof, by
public act, that their fathers, mothers, or other living
ancestors, persist in their first determination ; but
they shall not be bound to repeat the production of
any other act.
286.
Within a fortnight from the day on which a year
shall have expired, computing from the first de-
claration, the married parties, attended each by
two friends, persons of credit within the circle,
of the age of fifty years at the least, shall present
themselves together, and in person, before the
president of the court, or the judge who shall dis-
charge his functions ; they shall hand to him copies
in correct form, of the four statements, contain-
ing their mutual consent, and of all the acts which
shall have been annexed to it, and shall require of
80 Book I.-^Of Persons.
the magistrate, each separately, in the presence ne*
vertheless of each other, and of the four persons of
credit, sentence of divorce.
287.
After the judge and the attending parties shall
have made their observations to the married persons;
if they persevere, an act shall be delivered to them
of their request and of the presentation made by
them of the documents in its support : the registrar
of the court shall draw up a statement which shall
be signed as well by the parties (unless they shall
declare they know not how or are incapable of
writing, in which case mention shall thereof be
made) as by the four attending persons, the judge
and the registrar.
288.
The judge shall then annex to this statement, his
decree that within three days, a report shall by him
be made to the court in the council-chamber, upon
the conclusions in writing by the commissioner of
government, to whom the documents shall be, for
this purpose, communicated by the registrar. •
289.
If the commissioner of government finds in the
documents proof that the married parties were of the
age the husband of 25 years, the wife of 21 years
when they made their first declaration ; that at this
period they had been married during two years, and
that their marriage had not subsisted more than 20
years, that the wife was under the age of 45 years,
Title VI.— Of Divorce. 81.
that the mutual consent had been expressed four
times in the course of the year, after the preliminaries
hereinbefore prescribed, and with all the formalities
required in the present chapter, more especially with
the authority of the fathers and mothers of the mar-
ried persons, or with that of their other living ances-
tors in case of the previous decease of their fathers
and mothers : — ^he shall give his conclusions in these
terms; '* the law permits;'" in a contrary case, his con-
clusion shall be in these terms, ** the law forbids/'
S90.
The court shall not upon the report enter into
any other examinations than those pointed out in the
preceding article. If the result shall be that, in the
opinion of the court, the p^^rties have satisfied the
conditions and complied with the formalities ap-
pointed by the law, it shall admit the divorce, and
send the parties before the civil officer, to have it
pronounced : in the opposite case, the court shall
declare that the divorce cannot be admitted, and
shall set forth the grounds of their decision.
291.
The appeal against the judgment, declaring that
there is no ground for directing a divorce, shall only
be admissible where it is lodged by the two parties,
but by separate acts, within ten days at the soonest,
and at the latest within twenty days, from the date
of the judgment of first instance.
88 Book I. — Of Persons.
292.
The acts of appeal shall be mutually signified as
well to the other married party as to the commis-
sioner of the government of the court of first in^
stance.
298.
Within ten days, to be computed from the intima*
tion given to him of the second act of appeal, the
commissioner of government in the court of first
instance shall cause to be passed to th'e general com-
missioner of government in the court of appeal a
copy of the judgment, and the documents on which
it has been founded. The commissioner-general in
the court of appeal shall give his conclusions in
writing, within ten days following the receipt of the
documents : the president, or the judge officiating
for him, shall make his report to the court of appeal^
in the chamber of council, and judgment shall be
finally given within ten days following the remission
of the conclusions of the commissioner.
294.
In pursuance of the sentence establishing the di-*
vorce, and within twenty days from its date, the
parties shall present themselves together and in per^
son before the officer of the civil power, in order to
cause him to pronounce the divorce. This interval
exceeded, the judgment shall be as though it had
never occurred.
Title VL—Of Dioorce. 88
CHAPTER IV.
Of the Effects of Divorce.
S95.
Married parties who shall be divorced^ for any
cause whatsoever, shall never be permitted to be
united again.
896.
In a case of divorce pronounced for cause deter-
minate, the wife divorced shall not be permitted to
marry for ten months after divorce pronounced.
297.
In case of divorce by mutual consent, neither of
the parties shall be allowed to contract a new mar-
riage nntil the expiration of three years from the pro-
nunciation of the divorce.
298.
In the case of . divorce admitted by law for cause
of adultery, the guilty party shall never be permitted
to marry with his accomplice. The wife adulteress
shall be condemned in the same judgment ; and, on
the request of the public minister, to confinement in
a house of correction, for a determinate period, which
diall not be less than three months, nor exceed two
years.
299.
For whatever cause a divorce shall take place, ex-
cept in the case of mutual consent, the married party
against whom the divorce shall have been established
84 Book /. — Of Persons.
shall lose all the advantage conferred by the other
party, whether by their contract of marriage^ or
since the marriage contracted.
' 300.
The married party who shall have obtained the
divorce shall preserve the advantages conferred by
the other spouse, although they may have made
mutual stipulations and such reciprocity have not
taken place.
301.
If the married parties shall have conferred no ad*
vantage, or if those stipulated do not appear sufficient
to secure the subsistence of the married party who
has obtained the divorce, the court may award to
such party, from the property of the other, an ali-
mentary pension, which shall not exceed the third
part of the revenues of such other. This pension
shall be revocable in a case where it shall cease to be
necessary.
302.
The children shall . be entrusted to the married
party who has obtained the divorce, unless the court,
on petition by the family, or by the commissioner of
government, gives order, for the greater benefit of the
children, that all or some of them shall be committed
to the care either of the other married party, or of a
third person.
sog.
Whoever may be the person to whom the children
shall be committed, l^eir father and mother shall
Title VI.— Of Divorce. 85
preserve respectively the right to watch over the
maintenance and education of their children, and
shall be bound to contribute thereto in proportion to
their means.
804.
The dissolution of a marriage by divorce admitted
by law shall not deprive chi]4ren» the fruit of such
marriage, of any of the benefits secured to them by
the laws, or by the matrimonial covenants of their
father and mother ; but there shall be no admission
of claims by the children except in the same manner
and in the same circumstances in which they would
have been admitted if the divorce had not taken
place. H ' %
305.
In the case of divorce by mutual consent , a pro-
perty in half the possessions of each of the two mar-
ried parties shall be acquired in full right, from the
day of their first declaration, by the children born of
their marriage : the father and mother shall never-
theless retain the enjoyment of such moiety untQ
their children's majority, on condition of providing
for their nourishment, maintenance, and education,
in a manner suitable to their fortune and condition;
the whole without prejudice to the other advantages
which may have been secured to the said children by
the matrimonial covenants of their father and mother.
86 Book I. — Of Persons.
CHAPTER V.
Of the Separation qf Persons*
806.
In cases where there is ground for a petition in
divorce for cause determinate, it shall be free to the
married parties to make petition for separation of
persons.
, 807.
It shall be entered, carried on and determined in
the same manner as every other civil action : it shall
not take place in consequence merely of the mutual
consent of married parties.
308.
The wife against whom separation of persons shall
be pronounced for cause of adultery, shall be con-
demned by the same judgment, and, on the requisition
of the public minister, to confinement in a house of
correction during a fixed period, which shall not be
less than three months nor exceed two years.
809.
The husband shall continue empowered to arrest
the effect of this sentence, by consenting to receive
his wife again.
810.
When the separation of persons pronounced for
any other cause than that of adultery in the wife
shall have continued three years, the married party
who was originally defendant, may demand divorce
Tttk VIL—OfPatemity and Filiation. 87
of the court, which shall allow it, unless the original
plaintiff, present or duly summoned, consents imme-
diately that such separation shall cease.
311.
The separation of person shall import in every
case a separation of property.
TITLE VIL
OF PATERNITY AND FILIATION.
Decreed 9&th of March, 1803. Promulgated the 2d of April.
CHAPTER I.
Of the Filiation of legitimate Children, or those horn
in Marriage.
SIS.
An infant conceived during marriage claims the
husband as his father. The latter, nevertheless, may
disavow such child, on proof that during the time
which has elapsed from the three hundredth to the
one hundred and eightieth day previous to the birth
of the infant, he was either, by reason of absence, or
by the effect of some accident, under a physical in»-
capability of cohabiting with his wife.
313.
The husband shall not disavow an infant, on al-
legation of his natural impotence; he shall not
^disavow it even for cause of adultery, unless the
88 Book I.—Of Persons,
birth has been concealed from him, in which case
he shall be permitted to bring forward all the facts
proper to show that he is not the father.
814.
A child bom within 180 days from the ^'marriage
shall not be disavowed by the husband in the fol-
lowing cases :
1st. If he had knowledge of the pregnancy be-
fore the marriage.
2d. If he assisted at the act of birth, and if this
act is signed by him, or contains his declaration that
he cannot «ign.
3d. If the child is not declared likely to live.
816.
The legitimacy of an infant born three hundred
days after dissolution of marriage, may be contested.
816.
In the different cases where the husband is au-
thorised to disclaim, he must do so within a month,
if he be on the spot where the infant is born ;
Within two months after his return, if he be absent
at such time ;
Within two months after discovery of the fraud,
if the birth of the child have been concealed
from him.
817.
If the husband die before having made his dis-
claimer, but yet being within the interval aUowed
Title Vll.-^f Paternity and Filiation. 89
for making it, the heirs shall have two months to
contest the legitimacy of the child, to be reckoned
from the period at which such child shall be put in
possession of the property of the husband, or from
the period at which the heirs shall be disturbed by
the child in the possession.
•
318.
Every extrajudicial act containing a disavowal on
the part of the husband or of his heirs shall be as
though not made, unless followed within the interval
of one month, by an action at law, brought against
a tutor ad hoCj given to the child, the mother being
present.
CHAPTER n.
Of the Proofs of the Imitation of legitimate Children.
819.
The filiation of legitimate children is proved by
the acts of birth inscribed upon the registers of the
civil authorities.
320.
In default of this document, constant enjoyment
of the condition of a legitimate child is sufficient.
821.
The enjoyment of this condition is established by
a satisfactory combination of facts, indicating the
connexion of parent and child between an indi-
90 Book I.— 'C^ Persons.
vidual and the family to which he claims to belong.
The principal of these facts are,
That the individual has always borne the name of
the father to whom he claims to belong ;
That the father has treated him as his child, and
in that character has provided for his education, his
maintenance, and his establishment;
That he has been uniformly received as such in
society ;
That he has been acknowledged as such by the
family.
322.
No one is at liberty to claim a condition contrary
to that conferred on him by title of birth and pos-
session, conformable to such title ;
And reciprocally, no one can contest the condition
of him who has a possession conformable to his title
of birth.
823.
In default of title and constant enjoyment, or if
the child have been registered, either under false
names, or as born of father and mother unknown, the
proof of filiation may be made by witnesses.
This proof, however, cannot be admitted, except
when there is a commencement of proof in writing,
or when the presumptions and probable evidence
resulting from subsequent unquestionable facts are
sufficiently grave to decide their admission.
Titk VIL--Of Paternity and Filiation. 91
924.
The commencement of proof in writing is gathered
from the titles of the family, from registers, and
private papers of the father or the mother, Yrom
public acts, and likewise private ones emanating from
one party engaged in the dispute, or who would have
liad interest therein if living.
325.
Contrary proof may be made by all means proper
to establish that the claimant is not the child of the
mother he pretends to have, or even, the maternity
being proved, that he is not the child of the husband
of such mother.
826.
The civil courts alone shall be competent to adju-
dicate on claims of condition.
827.
A criminal action for an offence in concealing a
condition, cannot be commenced until after final
judgment on the question of condition.
828.
The action in claim of condition is imprescriptible,
with regard to the child.
829.
An action cannot be brought by the heirs of a
child who has not claimed, except he has died a
minor, or within five years after his majority.
I
92 Book L—Of Persons.
830.
The heirs may pursue this action where it has been
commenced by the child, unless he have formally
disccftitinued it, or that three years have passed with*
out any step taken, reckoning from the last act of
procedure.
CHAPTER III.
Of Natural Children.
SECTION I.
Of the LegiHmation of Natural Children.
SSI.
Children born out of wedlock, other than such as
are the fruit of an incestuous or adulterous inter-
course, may be legitimated by the subsequent mar-
riage of their father and mother, whenever the latter
shall have legally acknowledged them before their
marriage, or shall have recognized them in the act
itself of celebration.
382.
The legitimation may take place, in favour even
of deceased children who have left * descendants ;
and in such case, the benefit thereof accrues to such
descendants.
883.
Children legitimated by subsequent marriage
shall enjoy the same rights as if they were born in
wedlock.
TiUe VII.— Of Paternity and FtUation. 98
SECTION n.
Of the Acknowledgment ofNeUural Children.
«
S34.
The acknowledgment of a natural child shall be
made by an authentic act, whenever it shall not have
been done in its act of birth.
835.
This acknowledgment shall not take place for
the benefit of children bom of an incestuous or
adulterous intercourse.
886.
The acknowledgment of the father, without the
indication and concurrence of the mother, has no
effect, except as regards the father.
•
837.
An acknowledgment made during marriage, by
one of the parties, to the advantage of a natural
child, which such party shall have had before mar-
riage, and by a different person, shall not prejudice
the other married party, nor the children born of
such marriage. Nevertheless its effect shall be pro-
duced after the dissolution of the marriage, where
no children remain.
888.
A natural child acknowledged cannot claim the
rights of a legitimate child. The rights of natural
94 Book L — Of Persons.
children shall be settled under the title " QfSucces-
sums."
3S9.
£veiy acknawledgment on the part of father or
mother, as well as every claim on the part of the
child^ may be contested by all those who have inter-
est therein.
Scrutiny ai to paternity is forbidden* In the case
of rape» when the period of such rape shall refer to
that of conception, the ravisher may be declared, on
the petition of the parties interested, the father of
the child.
841.
Scrutiny as to maternity is admissible.
The child who shall claim his mother, shall be
m
bound to prove that he is identically the same child
of whom she was delivered.
0
He shall not be permitted to make this proof by
witnesses, until he shall have already made a com-
mencement of proof in writing.
342.
A child shall in no case be admitted to search
whether for paternity or maternity, in cases where,
according to article SS5, acknowledgment would
not have been admitted.
Titk VIII. — Of Adoption S^Jriendhf Guardianship. 95
TITLE VIII.
OF ADOPTION AND FRIENDLY GUARDIANSHIP.
Decreed 23d March, 1803. Promtdgated 2d of April.
CHAPTER I.
Of Adoption.
SECTION I.
0/ Adoption and its Effects.
Adoption is not permitted to persons of either
seXy except to those above the age of fifty years, and
who at the period of adoption shall have neither
children nor legitimate descendants, and who shall
be at the least fifteen years older than the individuals
whom they propose to adopt.
S44.
No one can be adopted by more than one person^
except by husband and wife.
Except in the case in article 866, no married
person can adopt without the consent of the other
conjunct.
345.
The faculty of adoption shall not be exercised
except towards an individual, for whom, during mi*
nority, and for a period of at least six years, the
party shall have supplied assistance, and employed
96 Book L-^^Of Persons.
uninterrupted care, or towards one who shall have
saved the life of the party adopting, either in a fight,
or in rescuing him from fire or water.
It shall suffice, in this latter case, that the adopter
have attained majority, be older than the adopted,
without children, or lawful descendants, and if mar-
ried, that his conjunct consent to the adoption.
846.
Adoption shall not, in any case, take place before
the majority of the adopted party. If the adopted
having father and mother, or one of them, has not
completed his twenty-fifth year, he shall be bound to
produce the consent of his father and mother, or the
survivor, to his adoption ; and if he is more than
twenty-five years of age, to require their counsel.
847.
The adoption shall confer the name of the adopter
on the adopted, in addition to the propter name of
• the latter.
848.
The adopted shall continue in his own family, and
shall there retain all his rights : nevertheless, mar-
riage is prohibited,
Between the adopter, the adopted, and his de-
scendants ;
Between adopted children of the same individual ;
Between the adopted, and the children who may
be bom to the adopter;
Between the adopted and the conjunct of tha
Titk FIIL^qf Adoption ^friendlj/ Guardianship. 97
adopter, and reciprocally between the adopter and
the conjunct of the adopted.
S49.
The natural obligation, which shall continue to
exist between the adopted and his father and mother,
to supply them with sustenance in cases determined
by the law, shall be considered as common to the
adopter and the adopted towards each other.
350.
The adopted shall acquire no right of succession
to the property of relations of the adopter ; but he
shall enjoy the same rights with regard to succession
to the adopter as are possessed by a child bom
in wedlock, even though there should be other
children of this latter description, born subsequently
to the adoption.^
851.
If the adopted child die without lawful descend-
ants> presents made by the adopter, or acquisitions by
inheritance to him, and which shall actually exist at
the decease of the adopted^ shall return to the
adopter or to his descendants, on condition of con-
tributing to debts, without prejudice to third persons*
The surplus of the property of the adopted shall
belong to his own relations ; and these shall exclude
always, for the same objects specified in the present
article, all the heirs of the adopter other than his
descendants.
u
9« Book I. ----Of Persons.
852.
If during the life af the adopter, and after the
decease of the adopted, children or descendants lefl
by the latter, shall themselves die without issue, the
adopter shall succeed to donations made by him, as
is directed in the preceding article ; but this right
shall be inherent in the person of the adopter and
not transmissible to his heirs, even in the descending
line.
,. ^ SECTION II.
Of the Forms of Adoption.
353.
The party who shall propose to adopt, with the
one who shall be willing to be adopted, shall present
themselves before the justice of the peace at the
domicile of the adopter, there to pass an act of their
mutual consent.
354.
A copy of this act shall be transmitted, within ten
days following, by the more diligent party, to the
commissioner of government in the court of first
instance, within whose jurisdiction the domicile of
the adopter shall be found, in order to be submitted
to the approbation of that court.
855.
The court, being assembled in the chamber of
council, and having received suitable testimonials.
TUkVIII. — Of Adoption ^friendly Guardianship. 99
shall certify, 1st, whether all the conditions of the
law are complied with ; Sd, whether the party who
proposes to adopt enjoys a good reputation.
356.
After having heard the commissioner of govern-
ment and without any other form of proceeding,
the court shall pronounce without giving its reasons,
in these terms : " There is ground^** or, " There is
no ground for adoption.*'
357.
In the month succeeding the judgment of the
court of first instance, this judgment shall, on the
prosecution of the more diligent party, be submitted
to the court of appeal, which shall deal with it in the
same forms as the court of first instance, and shall
pronounce without assigning reasons : '^ The judg-
ment is confirmed^** or " The judgment is reversed ;
in consequence there is ground,"* or " There is no
ground for adoption**'
358.
Every judgment of the courts of appeal, which
shall establish an adoption, shall be pronounced at
die hearing, and posted in such places and in such a
number of copies as the court shall judge expedient.
359.
Within three months after this judgment, the
adoption shall be enrolled, on the requisition of one
h2
100 Book L^^f PersoM.
or other of the parties, on the register of the civil
power of the place where the adopter shall be
domiciled.
This enrolment shall not take place but upon
view of a copy, in form, of the judgment of the court
of appeal ; and the adoption shall remain without
effect unless it be enrolled withiii this interval.
860.
If the adopter happen to die after the act setting
forth his inclination to form a contract of adoption
has been receivedby the justice of peace and carried
before the courts, and before these have finally pro-
nounced, the procedure shall be continued and the
adoption admitted if there be ground. The heirs
of the adopter may, if they believe the adoption in-
admissible, remit to the commissioner of government
all memorials and observations on this subject.
CHAPTER IL
Ofjriendly Guardianship.
361.
Every individual aged above fifty years, and with-
out children or legitimate descendants, who shall be
willing during the minority of an individual, to at-
tach him to himself by a legal title, may become his
friendly guardian, on obtaining the consent of the
father and mother of the child, or of the survivor of
them, or, in their default, of a family council, or
TitkVIII.'^Of Adoption^ friendlyGuardianship. 101
finally if the child have no known relatives, on ob-
taining the consent of the directors of the hospital
into which he shall have been received, or of the
municipality of the place of his residence.
362.
A married person cannot become a friendly
guardian, without the consent of the other con-
junct.
368.
The justice of the peace at the domicile of the
child shall draw up a statement of the petitions and
consent relative to the friendly guardianship.
364.
This guardianship shall not have place except for
the benefit of children aged at least fifteen years.
It shall carry with it, without prejudice to any
private stipulations, the obligation of supporting the
ward, of bringing him up, and of putting him in a
situation to gain his livelihood.
365.
If the ward possess any property, and has been
formerly under guardianship, the administration of
his property as well as that of his person «hall pass
to the friendly guardian, who nevertheless shall not
be permitted to throw the expenses of education on
the fiinds of the ward.
366.
If the friendly guardian, after the lapse of five
102 Book /. — Of Persons.
years since his guardianship, and in the prospect of
his decease before the majority of his pupil, confers
on him adoption by testamentary act, such disposi-
tion shall be valid, provided the friendly guardian
does not leave children.
In the case where a friendly guardian dies either
before the five years or after that time, without ha-
ving adopted his ward, the latter shall be supplied
with the means of subsistence of which the quantum
and the kind, unless provided for by some anterior
formal covenant, shall be regulated either amicably
between the respective representatives of the guar-
dian and his ward, or judicially in case of dispute.
•
368.
If, at the majority of the ward, his friendly guar-
dian be willing to adopt him, and the former consent
thereto, proceedings shall be taken for the adoption
according to the forms prescribed in the preceding
chapter, and the effects thereof shall be, in all points,
the same.
869*
If, within three months following the majority of
the ward, the requests made by him to his irieodly
guardian on the subject of adoption, remain in^eb-
tual, and the ward shall not find himself in a condi-
tion to gain his livelihood, the friendly guardian may
be sentenced to indemnify his ward for the incapa-
city in which the latter finds himself of providing for
his own subsistence.
Tttte IX.— 0/ Paternal Power. 108
This indemnity shall resolve itself into support
proper to procui*e him a trade j the whole without
prejudice to stipulations which may have been made
in prospect of this case.
870-
The friendly guardian who shall have had the
management of any of his ward's property, shall be
bound in every case to render an account thereof.
TITLE IX.
OF PATERNAL POWER.
Discreed ike 24th of March, 1803. Promulgated 3rd of Apr'd.
871.
A child, at every age, owes honour and respect to
his father and mother.
872.
He remains subject to their control until his ma-
jority or emancipation.
878.
The father alone exercises this control during mar-
riage.
874.
A child cannot quit the paternal mansion without
the permission of his father, unless for voluntary
enlistment after the full age of eighteen years.
104 Book I. "^/Persons,
375.
A. father who shall have cause of grievous dissatis-
faction at the conduct of a child, shall have the fol-
lowing means of correction.
376.
If the child have not commenced his sixteenth
year, the father may cause him to be confined for a
period which shall not exceed one month ; and to
this effect the president of the court of the circle
shall be bound, on his petition, to deliver an order
of arrest.
877.
From the age of sixteen years commenced to the
majority or emancipation, the father is only em-
powered to require the confinement of his child
during six months at the most ; he shall apply to the
president of the aforesaid court, who, after having
conferred thfereon with the commissioner of govern-
ment, shall deliver an ordier of arrest or refuse the
same, and. may in the first case abridge the time of
confinement required by ihe father.
878.
There shall not be in either case, any writing or
judicial formality, except the order itself for arrest,
in which the reasons thereof shall not be set forth.
The father shall only be required to subscribe an
undertaking to defi'ay all expenses and to supply
suitable support.
Titk IX.— Of Paternal Poiver. 106
»79.
The father is always at liberty to abridge the du*
ration of the confinement by him ordered or required.
If the child after his liberation fall into new irregu-
larities, his confinement may be ordered anew, ac»
cording to the manner prescribed in the preceding
articles.
380.
If the father be remarried, he shall be bound to
conform to article 377 in order to procure the con-
finement of his child by the first bed, though under
the age of sixteen years.
381.
The mother surviving and not married again is not
empowered to cause the confinement of a child ex-
cept with the concurrence of the two nearest paternal
relations, and by means of requisition, conformably
to article 377*
388.
When, the child shall possess personal property, or
when he shall exercise an office, his confinement shall
not take place, even under the age. of sixteen years,
except, by way of requisition in the form prescribed
by article 377-
The child confined may address a memorial to the
commissioner of government in the court of appeal.
This commissioner shall cause the child to render a
detail in the court of first, instance, and shall make
his report, to the president of. the court of appeal,
who, after having given intimation thereof to the
X06 Book I.-^Of Persons.
father, and after having collected the proofs, may
revoke or modify the qrder delivered by the president
of the court of first instancy.
38S.
Articles S76, S77, 378, and 379* shall be common
to fathers and mothers of natural children, legally
recognised. . ^
384.
The father during marriage, and, after the dissolu-
tion of marriage, the father or mother surviving,
shall have the enjoyment of the property of their
children, until the full age of eighteen years, or
until emancipation, which may take place before the
age of eighteen years.
385.
The conditions of such enjoyment shall be —
1st. Those by which usu-fructuaries are bound j
Sd. Nourishment, maintenance, and education of
children, according to their fortune ;
Sd. The payment of arrears or interest on capital ;
4di. Funeral expenses, and those of the last
sickness.
I »
38b.
This enjoyment shall not take place for the benefit
of a father or mother against whom a divorce shall
have been pronounced ; and it shall cease with regard
to the mother in the case of a second marriage.
Title X.—Of Minority, Guardianship^ ^. 107
It shall not extend to property which children may
have acquired by separate labour and industry, nor
to such as shall be given or bequeathed to them
under the express condition that their father and mo-
ther shall not enjoy it.
TITLE X.
OF MINORITY, GUARDIANSHIP, AND EMANCIPATION.
Decreed 26th of March, 1803. Promulgated the 5th of April ,
CHAPTER I.
Of Minority.
888.
A minor is an individual of either sex who has not
yet accomplished the age of twenty-one years.
CHAPTER II.
0/ Guardianship*
SECTION I.
Of the Guardianship of Father and Mather.
389.
The father is, during marriage, administrator of
the personal effects of his children being minors.
He is accountable, as far as regards property and
rents, for such effects as he has not the enjoyment
of} and, as regards property, only for such whereof
the law allows him the usu-fruct.
lOB Book Inr-^f Persons.
890.
After the dissolution of marriage occurring by
the natural or civil death of one of the parties, the
guardianship of children being minors, and not
emancipated, belongs absolutely to the survivor of
the father and mother.
991.
The father ahall be at liberty,, nevertheless, to
nominate to the mother surviving and being guardian,
a special council, without whose concurrence she
shall not have power to do any act relative to the
guardianship. If the father specify the acts for
which the council shall be nominated, the guardian
shall be competent to do other acts without as-
sistance,
892.
This nomination of council shall only be made in
one of the modes following :
1st. By act of last will ;
2d. By a declaration made either before the justice
of peace, assisted by his registrar, or before notaries.
898.
If at the time of the husband's decease, his wife is
with child, a curator for the unborn issue shall be
named by a family council.
At the birth of the child the mother shall become
guardian thereof, and the curator shall be its deputy
guardian in full right.
Title X. — Of Minority 9 Guardianship^ SfC. 109
394.
The mother is not bound to accept the guardian-
ship ; nevertheless, and in case she refuses it, she
must discharge the duties thereof until she have
caused a guardian to be appointed.
395.
If a mother being guardian desires to marry again,
she is required before the act of marriage to convoke
a family-council, who shall decide whether the
guardianship ought to be continued to her.
In defect of such convocation she shall lose the
guardianship entirely ; and her new husband shall
be jointly and severally responsible for all the con-
sequences of the guardianship which she shall have
unduly continued.
396.
When the family council, being duly convoked,
shall continue the guardianship to the mother, it
shall of necessity assign to her, as a. conjoint guar-
dian^ her second husband, who shall with his wife bi&-
come jointly and severally responsible for the ad^
ministration subsequent to the*marriage.
SECTION II.
Of the GuartRanthip appointed by the Father or Mother.
397.
The individual right of choosing as guardian, a
relation or even a stranger, belongs only to the fa-
ther or mother who shall last die.
116 6odk T.-^Qf Persons.
This right cannot be exercised except in the fonns
prescribed by article 392, and subject to the modifi-
cations and exceptions hereinafter mentioned.
S99.
A wife re-married and not continued in her guar-
dianship of the children of her first marriage, cannot
choose them a guardian.
400.
When the mother remarried and continued in the
guardianship, shall have made choice of a guardian
for the children of her former marriage, such choice
shall only be valid as far as it shall be confirmed by
the family council.
401.
The guardian elected by the father or the mother
is not bound to accept the guardianship, if he be
not in other respects within the class of persons,
whom in default of such special election the family-
council might have charged with it.
SECTION III.
Of the Guardianship of Ancestors,
402.
Where a guardian has not been chosen for a minor
by his father or mother who died last, the guar-
dianship belongs of right to his paternal grandfather ;
and in default of such to his maternal grand-
THtle X.'—Of Mtnaniy^ Guardianship, Sfc. Ill
father, and so ascending, in such manner as that the
paternal ancestor shall, in all cases, bepreferred to
the maternal ancestor in the same degree.
40S.
Where, in default of the paternal grandfather, and
likewise of the maternal grandfather of the minor,
an equal claim shall appear to be established between
two ancestors of a higher degree, who shall both be-
long to the paternal line of the minor, the guardian-
ship shall pass of right to such of the two as shall be
found to be paternal grandfather of the father of the
minor.
404.
If the same competition take place between two
great-grandfathers of the maternal line, the nomina-
tion shall be made by the family-council, who shall,
nevertheless, only have power to choose one of such
two ancestors.
SECTION IV.
Of Guardianship appoint^ by the Family 'CcunciL
405.
When a child a minor and not emancipated shall
be without father or mother, or guardian elected by
his father or mother, or without male ancestors, as
also when the guardian of one of the descrip-
tions above-mentioned^ shall find himself either
within the case of the exclusions hereinafter de-
scribed, or validly excused, the nomination of a
guardian shall be provided for by a family-council.
112 Book I.— Of Persons.
406.
This council shall be convoked either on the
requisition and care of the relations of the minor, of
his creditors, or of other parties interested, or even
officially and on the prosecution of the justice of
the peace at the domicile of the minor. Any person
may declare before this justice of the peace, the fact
which shall give occasion to the nomination of a
guardian.
407.
The family council shall be composed, exclusive
of the justice of the peace, of six relations or con-
nexions, taken as well from the commune where the
guardianship shall be opened, as within the distance
of two myriameters, half on the father's side, and
half on the mother's side, and according to the
order of proximity in each line.
The relation shall be preferred to the connexion
in the same degree ; and amongst relations of the
same degree, the elder to the younger.
408.
The brothers-german of the minor, and the hus-
bands of sisters-german, are alone excepted from the
limitation of the number laid down in the preceding
article.
If they are six,' or above, they shall all be members
of the family council, which they shall compose alone,
with the widows of ancestors,' and ancestors validly
excused, if there be any.
If they are in number too few, the other relations
Titie X.^— Of Minority^ Guardianship^ S^c. 118
shall be summoned only for the purpose of complet-
ing the council.
409.
When the relations or connexions of either line
shall find themselves insufficient in number on the
spot» or within the distance pointed out by article
407, the justice of the peace shall summon either
relations or connexions residing at greater distances,
or within the same commune, citizens known as
having had habitual friendly intercourse with the
father or the mother of the minor.
410.
The justice of the peace is at liberty, even when
there shall be on the spot a sufficient number of
relations or connexions, to give permission to sum*
mon, at whatever distance they may be domiciliated,
relations or connexions nearer in degree, or of the
same degree as the relations and connexions pre-
sent ; in such manner however that it shall operate
to withdraw some of the last, and without exceeding
the number directed in the preceding articles.
411.
The interval for appearance shall be regulated by
the justice of the peace on a day fixed, but in such
manner that there shall always be an interval of three
days at the least between the notification of the sum-
mons, and the day appointed for the assembling of
the council, although ^1 the parties summoned shall
114 Book I.— Of Persons.
reside within the commune, or within the distance
oftwomyriameters.
As often as any among the parties summoned
shall be found to reside beyond that distance, the
interval shall be augmented by one day for every
three myriameters.
412.
The relations, connexions, or friends thus con-
vened^ shall be bound to appear in person, or cause
themselves to be represented by especial proxy.
The proxy can only represent one person.
413.
Every relation, connexion, or friend convoked^
and who without lawful excuse shall fail to appear,
shall incur a fine not exceeding fifty francs, and
which shall be awarded without appeal by the jus-
tice of the peace.
414.
If there be sufficient excuse, and it shall appear
convenient either to wait for the absei^t member, or
to supply his place ; in such case, as in every other
where the interest of the minor shall appear to require
\ty it shall be lawful for the justice of the peace to
adjourn the assembly, or to postpone it.
415.
This assembly shall be held as of right at the house
of the justice of the peace, unless he himself shall
point out another place of meeting.
Tltk X*— Of Minority i Guardianship^ <§r. 116
The presence of three-fourths at least of the mem-
bers convoked shall be necessary in order to their
deliberations.
^ 416:
The justice of the peace shall preside over the
family-council, and sfiall have therein a deliberative
voice, and the casting vote in case of division.
417.
When a minor, residing in France, shall possess
property in the colonies, or vice versd, special admi-
nistration of his property shall be given to a sup*
plementary guardian.
In this case the guardian and supplementary
guardian shall be independent, and not responsible
to each other in regard to the discharge of their
respective functions.
418.
The guardian shall act and administer, in this
capacity, from the day of his nomination, if it took
place in his presence ; if otherwise, from the day on
which it was notified to him.
419.
Guardianship is a person^ charge, which does not
pass to the heirs of the guardian. They shall only
be responsible for the conduct of their predecessor ;
and if they are of age, they shall be bound to con-
tinue it until the nominaftitm of a new guardian.
i3
116 Book L — Of Persons^
SECTION V.
Of the Supplementary Guardian^
420.
In every guardianship there shall be a supple-
mentary guardian^ nominated by the family-council.
His functions shall consist in acting for the interests
of the minor, when they shall be in opposition to
those of the guardian.
421.
When the function^ of guardian shall devolve
up<Hi a person described under Section 1, 2, or 3, of
the present chapter, such guardian. is bound, before
entering upon his functions, to convoke a family-
council, composed as is pointed out in Section 4, for
the purpose of nominating a supplementary guardian.
If he intermeddle with the management before he
has complied with this formality, the family-council
convened, either on the requisition of the relations,
creditors, or other parties interested, or officially by
the justice of the peace, may, if there be fraud on
the part of the guardian, withdraw him from the
guardianship without prejudice to the indemnities
due to the minor.
422.
In other guardianships, the nomination of supple-
mentary guardian shall have place immediately aflt^c
that of guardian^
428.
In no case shall the guardian vote for the nomina*
tion of supplementary guardian, who shall be selected,,
Tuk X.—Of Minorihf, Guardianship, ^. 117
except in the case of brothers-german, in that of two
lines to which the guardian shall not belong.
424.
The supplementary guardian shall not supply en-
tirely the place of the guardian, when the guardian-
ship shall become vacant, or when it shall be aban-
doned by absence ; but he shall be bound in such
case, under pain of damages which may accrue there-
from to the minor, to urge the nomination of a new
gaardian.
425.
The functions of supplementary guardian shall
cease at the same period as the guardianship.
426.
The regulations contained in sections 6 and 7 of
the present chapter, shall apply to supplementary
guardians.
Nevertheless the guardian shall not be at liberty to
nrge the deprivation of the supplementary guardian,
nor to vote in family councils, which shall be con-
vened for that object.
SECTION VI.
Of the Causes which excuse from Guardianshtp.
427.
Persons excused from guardianship are,
Membiers of authorities established by titles 2, 8,
and 4, of the constitutional act ;
The judges of the court of cassation, the com*
118 Book I. ^^f Persons.
missioner-general of government, and his substitutes,
in the same court ;
The commissioners of the national accounts ;
The prefects ;
AU citizens, exercising a public function in a de-
partment different from that in which the guardian-
ship is established.
428.
Equally exempted from guardianship are.
Military men in active service, and all other
citizens who are in the discharge of a commission
from government beyond the territory of the re-
public.
489.
If the commission be unauthenticated and con-
tested, the exemption shaU not be pronounced until
after the government shall have explained itself
through the medium of the minister for the depart-
ment within which the commission alleged as excuse
shall lie.
480.
Citizens of the description contained in the pre*
ceding articles, who have accepted guardianship sub-
sequently to the functions, services, and commissions,
which exempt from it, shall not be permitted for
such cause to procure their discharge therefrom.
481.
Those, on the contrary, or vfhom the functions,
services, and commissions, shall have been imposed.
Title X.^Of Minority, Guardianship, ^. 119
subsequently to the acceptance and exercise of
guardianship, may, if unwilling to continue it, cause a
family council to be convoked within one month, and
take measures therein for supplying their place.
If, at the expiration of these functions, services,
and commissions, the new guardian claim his dis-
charge, or the ancient one demand his guardianship
again, it may be restored to the latter by a family
council.
4S2.
No citizen, not being a relation or connexion, can
be compelled to accept guardianship, except in the
case where there shall not be, within the distance of
four myriameters, relations or connexions in condi-
tion to undertake the guardianship.
438.
Every individual who has completed his sixty-fifth
year may refuse to become a guardian. He who
previously to this age shall have been nominated
such, may at seventy years cause himself to be dis-
charged from the guardianship.
434.
Every individual attacked with a grievous sickness,
being duly proved, is eicempted from guardianship.
He may moreover cause himself to be discharged
therefrom, if this infirmity has come upon him since
his nomination.
435.
Two guardianships are, in the case of all persons,
a sufficient excuse for not accepting a third.
120 Book I*— Of Persons.
I
The husband or father who shall be already charged
with one guardianship, shall not be bound to accept
a second, other than that of his children.
436.
They who have five lawful children are exempted
from every guardianship other than that of such
children. Children wbo have died in active service
in the armies of the republic shall be always reckoned
as operating such exemption.
Other children being dead shall not be reckoned
except so far as they shall themselves have left
children in actual existence.
487.
The event of children born during guardianship
shall not authorise its resignation.
438.
If the guardian nominated be present at the deli-
beration which imposes on him the guardianship, he
shall be bound forthwith, and on pain of being ex-
cluded from all ulterior objection, to propose his
excuses, on which the family council shall deliberate.
4S9.
If the guardian nominated has not assisted at the
deliberation which imposed upon him the guardian-
ship, he may cause a family council to be convoked
in order to deliberate on his excuses.
His proceedings on this subject shall take place
within an interval of three days, commencing with
Title X.-^ Minority, Guardianship, S^. 121
the intimation which shall have been given him of
his nomination ; this interval shall be augmented by
one day for three myriameters of distance from the
place of his domicile to that of the opening of the
guardianship: this interval past, he shall not be
heard.
440.
If his excuses are rejected he may make applica-
tion to the courts to have them admitted ; but he
shall be bound, during the litigation, to act as guar-
dian provisionally.
441.
If he succeed in causing himself to be exempted
from the guardianship, they who shall have rejected
bis excuses shall be condemned in costs of suit.
If he fail, he shall himself be condemned therein.
SECTION vn.
0/ Incapacity , Ejtdufion and Deprivation of Guardianship. %
442.
Persons incapable of being guardians or members
of family councils are,
1st. Minors, except the father or the mother ;
2d. Interdicted persons ; *
8d. Women, except the mother and female an-
cestors ;
4th. All those who have, or whose father or mother
has, with the minor a suit, in which the estate of such
minor, his fortune, or a considerable portion of his
property, is brought in question.
i
l«a Book I.^Qf Persons.
443.
Condemnation to an afflictive or infamous punish-
ment imports absolutely an exclusion from guardian-
ship. It imports in like manner deprivation, in a
case where the question is respecting a guardianship
previously conferred.
444.
Excluded also from guardianship, and deprivable
if already in the exercise of it are,
1st. Persons guilty of notorious misconduct;
2d. Those whose management thereof betrays
incapacity or want of fidelity.
445.
No individual who shall have been excluded or
deprived of a guardianship, can be a member of a
family council.
446.
As often as there shall be ground for the depriva-
tion of a guardian, it shall be pronounced by a family
council, convoked at the instance of the supple-
mentary guardian, or officially by the justice of the
peace.
Such guardian shall not be at liberty to neglect
calling such convocation, when formally required
thereto by one or more relations or connexions of the
minor, of the degree of cousin-german or of still
nearer degrees.
447.
Every resolution by a family council which shall
pronounce the expulsion or deprivation of a guardian.
Title X.—Of Minority, Guerdianship, Sfc. 1«S
shall recite its motives, and diall not be made until
the guardian shall have been heard or summoned.
448.
If the guardian concur in the resolution, mention
shall be thereof made, aod the new guardian shall
eoter immediately up<m his functioiis.
If he object, the supplementary guardian shall sue
for a confirmation of the resdutioti before the court
of first instance, which shall decree, saving the right
of appeal.
The guardian excluded or deprived may himself,
in such case, summon the supplementary guai'dian
in order to procure himself to be confirmed in his
goardianahip.
449.
The relations or connexions who shall have re*-
quired the convocation, may become parties in the
cause, which shall be carried on and judged as an
urgent afi&irp
SECTION VIII.
Of the Guardian's Administration.
450. •
The guardian shall have the care of the person of
the minor, and shall represent him in all civil acts.
He shall deal with his property like a good father
of a family, and shall answer in damages for the con-
sequences of his mismanagement.
He must not buy the property of the minor, nor
'ersons.
184 Book
take it on lease, unless the family-council have au-
thorised the supplementary guardian to let it him to
hire, nor accept an assignment of any claim or credit
against his ward.
451.
Within ten days following that of his nomination,
duly notified to him, the guardian shall require the
removal of seals, if any have been affixed, and shall
proceed immediately to make* an inventory of the
goods of the minor, in presence of the supplementary
guardian.
If any thing be due to him from the minor, he
must declare it in his inventory, on pain of forfeiture,
and this on the requisition which the public officer
shall be bound to make thereon to him, and whereof
mention shall be made in the statement.
458.
Within the month following the close of the
inventory, the guardian shall cause to be sold at an
auction, held by a public officer in presence of the
supplementary guardian, and after bills or notices, of
which mention shall be made in the statement of
sale^ all the moveable goods other than those which
the fanuly-council shall have authorised him to pre-
serve in kind.
458. I
The father and mother, as long as they have the
personal and legal enjoyment of the property of the
Title X — Of Minority, Guardianship^ <§v. 125
minor, are excused from selling the moveable goods^
if they prefer preserving them in order to their
restoration in kind.
In this case they shall cause an estimate to be
made, at their own expense, of their just value, by an
experienced person named by the supplementary
guardian, and who, shall be sworn before the justice
of the peace.
They shall render the estimated value of such of
the moveable goods as they are unable to produce
in kind.
454.
At the period of entering upon the exercise of
Qvery guardianship, other than that of the father
and mother, the family-council shall regulate by
observation, and according to the importance of
the property administered, the amount of the minor's
annual expense, as well, as that of the administration
of his property.
The same act shall specify whether the guardian
is authorised to procure the assistance in his manage-
ment of one or more private administrators, paid by
Sjilaries and acting under his responsibility.
455.
The council shall determine positively the sum at
which the obligation on the tutor shall commence,
of employing the surplus of the revenues above the
expenditure ; this employment must be made within
the interval of six months^ which past, the guardian
1«6 Book L-^Of Persons.
shall become debtor for interest in default of em-
ploying it*
456.
If the guardian have not caused the sum at which
liie employment shall commence to be determined
by a family-council, he shall, after the interval ex-
pressed in the preceding article, become debtor for
the interest of tlie whole sum unemployed, however
small it may be.
457.
The guardian, even though father or mother, may
not borrow for the minor, nor alienate, nor mortgage
his immoveable property, without being authorised
thereto by a family-council.
This authority shall not be accorded except in case
of an al)solute necessity, or an evident advantage.
In the first case the family-council shall not grant
its authority, until it shall have been proved, by a
sucdnct account presented by the guardian, that
the money, personal effects, and revenues of the
minor, are insufficient.
The family-council shall point out, in all^ cases,
the immoveable property which ought to be sold by
preference, and all the conditions which it shall
deem useful.
458.
Tlie resolutions of the family-council relative to
this object shall not be executed until after the
guardian shall have demanded and obtained con-
firmation thereof before the civil court of first instance,
which shall decree thereon in the chamber of council.
Title X. — 0/ Minority, Guardiamkip^ S^. \9rf
and after having heard the commissioner of go-
vernment.
459.
The sale shall be made publicly, in presence of
the supplementary guardian, at an auction held by
a member of the civil court, or by a notary appointed
for this purpose, and after the publication of three
notices, in three consecutive weeks, in the usual
place within the district.
460.
The formalities required by articles 457 and 45S
in order to the alienation of the property of a minor,
m
do not apply to the cases in which a judgment shall
have directed an auction on the application of a co-
proprietor indivisibly.
Provided only in such case that the auction do
not take place except in the form prescribed by the
preceding article ; strangers shall, of necessity, be*
admitted thereto.
461.
The guardian shall not be at liberty to accept or
to repudiate a succession fallen to the minor, without
a previous authority from the family-council* The
acceptance shall only take place under the benefit
of the inventory.
462.
In a case where a succession repudiated in tiie*
name of the minor shall not have been accepted hy
another, it may be nesumed either by the guai:£an^
1«8 Booh L^-Of Persons.
authorised to this end by a new resolution of the fa-
mily-council, or by the minor himself when arrived
at full age, but in the state in which it shall be found
at the time of the resumption, and without power to
impeach any sales and other acts which shall have
legally taken place during the interval.
468.
A donation made to a minor shall not be accepted
by the guardian, except with the authority of a fa-
mily-council.
It shall have, with regard to the minor^ the same
e&ct as with regard to an adult.
464.
No guardian shall be at liberty to bring an action
respecting real claims of the minor, nor to acquiesce
in a demand relative to such claims, without the au-
thority of a family-council.
465.
The same authority shall be necessary to a guar-
dian in order to claim a partition \ but it is compe-
tent to him without such authority to answer a claim
for partition directed against the minor.
466.
In order to obtain from it the whole effect which
would follow as against adults, the partition should
be made by an officer of law, and should be preceded
Title X.—OfMm(yrittf, Guardianship, S^. 129
«
by an estimate made by experienced persons named
by the civil court of the place of opening the suc-
cession.
Such experienced persons after having taken an
oath well and faithfully, to fulfil their office, before
the presixleAt of the same court or another judge
delegated by him, shall proceed to the division of
the inheritance and the formation of lots, which shall
be taken by chance, And iii the presence either of a
meiQber of the court, or of a notary commissioned
by him, who 3hall make distribution of the lots.
Every other partition shall be considered merely
as provisional.
467.
The guardian shall not be at liberty to co^ipound
for the minor, until he shall be thereto authorised
hy the family-council, aqd under the direction of
three jurisconsults, appointed by the commissioner
of government in the court of first instance.
No composition shall b^ valid, except so far as it
SihaU have been confirme4 by the court of first in-
ptaoce, after haying heard the commissioQer of
government*
468. #
The guardian who shall have cajuses of grievous
d}Bs»tis£»ction respecting the conduct of the minor,
*may lay his complaints before a family-council, and
if thereto authorised by such council, may claim the
confinement of the minor, conformably to what has
keen decreed on this subject under the title " Of
paternal power^*^
K
130 Book 7. — Of Persons.
SECTION IX.
Of the Accounts of the Guardianship.
469.
Every guardian is accountable for his management
at the close of it.
470.
Every guardian other than the father and mother
may be required, even during the guardianship, to
submit to the supplementary guardian accounts of
the situation of his charge, at such periods as the
family-council shall deem it proper to fix upon,
provided, nevertheless, that the guardian shall not
be bound to furnish more than one of them each year.
These accounts of situation shall be drawn up and
remitted free of charge on unstamped paper and
without any legal formality.
■
471.
The final account of the guardianship shall be
rendered at the expense of the minor, when he shall
have reached his full age, or obtained his emancipa-
tion. The guardian shall advance the expenses.
The guardian-shall be allowed therein every charge
satisfactorily verified, and the object of which shall
be useful.
472.
Any s^reement which may happen between the
guardian and the minor on his coming of age shall
Title X. — Of Minority, Guardianship^ Sfc. 131
«
be null, unless preceded by the rendering of a
detailed account, and the production of vouchers ;
the whole verified by the receipt of the auditors, ten
days at least before such agreement.
478.
If the account afford ground for disputes, they
shall be prosecuted and determined like other dis-
putes on a civil matter.
474.
The sum to which the balance of the account due
from the guardian shall amount, shall carry interest
without demand, to be computed from the close of
the account.
The interest on what shall be due to the guardian
from the minor, shall only run from the day of the
demand of payment subsequent to the close of the
account.
475.
Every action by a minor against his guardian,
relative to the transactions of the guardianship,
ceases by prescription after ten years, computing
from the majority.
k2
l»a Book I. -^f Persons.
CHAPTER III.
Of Emancipation.
476-
The minor is emancipated to all intents and pur-
poses by marriage.
477.
The minor, even though not married, may be
emancipated by his father, or, in default of father, by
his mother, when he shall have attained the full age
of fifteen years.
This emancipation shall be effected by the simple
declaration of the father or mother, received by the
justice of the peace, assisted by his registrar.
478.
A minor left without father or mother may like-
wise be emancipated, if the family-council judge
him capable thereof, provided only he have accom-
plished his eighteenth year.
In sluch case, the emancipation shall result from
the resolution which shall have authorised it, and
from the declaration of the justice of the peace, as
president of the family-council, made in the same act,
that the minor is emancipated.
479.
\^en the guardian shall not have taken any mea-
sures for the emancipation of the minor, of which
Title X. — Of Minority J Guardianship^ S^c. 138
mention is made in the preceding article, and when
one or more relations, or connexions of such minors
of the degree of cousin-german, or of other nearer
degrees, shall judge him capable of being emanci-
pated, they may require the justice of the peace to
convoke the family-council in order to deliberate
on this subject.
The justice of the peace is bound to yield his
assent to this requisition.
•
480.
The accounts of the guardianship shall be ren-
dered to the minor emancipated, assisted by a
curator, who shall be nominated for him by the
family-council.
481.
A minor emancipated shall make leases, whose
duration shall not exceed nine years; he shall
receive his revenues and shall therefore give dis-
charge, and shall do all acts consisting only of pure
administration, without being liable in respect of
such acts in all cases in which an adult would not
be so himself.
482.
He shall not bring a real action or be defendant
therein, even to receive and give discharge for a per-
sonal capital, without the assistance of a curator, who
in the last case shall take charge of the employment
of the capital received.
134 Book I. — Of Persons.
488.
A minor emancipated is not permitted to borrow,
under any pretext, without a resolution of the family-
council, confirmed by the civil court, after having
heard the commissioner of government.
484.
He shall not be permitted to sell or alienate his
immoveable property, or to do any other act than
those of pure administration, without observing the
forms prescribed to an unemancipated minor.
With regard to obligations contracted by him in
the way of purchases or otherwise, they shall be
reducible in case of excess ; the courts shall on this
subject take into consideration the fortune of the
minor, the good or bad faith of the persons who
shall have contracted with him, the utility or inuti-
lity of the expenses.
485.
Every emancipated minor, whose engagements
shall have been reduced by virtue of the preceding
article, may be deprived of the benefit of emancipa-
tion, which shall be recovered by him in pursuing
the same forms as those which shall have taken
place in conferring it upon him.
«
486.
The minor shall re-enter into guardianship from
the day on which his emancipation shall have been
revoked, and so continue until his majority shall be
accomplished.
Title Xl.^Of Majority, Interdiction, S^c. 185
487.
The minor emancipated, who enters into trade, is
reputed an adult for the acts relative to such trading.
TITLE XL
OF MAJORITY, INTERDICTION, AND THE JUDICIAL
ADVISER.
Decreed 29th March, 1803. Promulgated \%th of April.
CHAPTER L
Of Majority.
488.
Majority is fixed at 'twenty-one years completed ;
at this age a person is capable of all acts regarding
civil life, saving the restriction contained under the
title " of Marriage*
99
CHAPTER II.
Of Interdiction.
489*
An adult, who is in an habitual state of idiotcy, of
insanity, or madness, must be interdicted, even
though such state present some lucid intervals.
490.
Any person is competent to claim the interdiction
of a relative. It is the same with one spouse with
regard to the other.
186 Book I.^qf Persons.
In the cAse of madness^ if the intefdictiM iil not
claimed, either by the spouse or by the relativeSj it
must be claimed by the commissioner of government,
who may also claim it in cases of idiotcy or insanity
against an individual who is unmarried, and without
known relatives.
Every demand of interdiction shall be made before
the court of first indtafide.
493.
Acts of idiotcy, insanity, or madness, shall be
alleged in writing* They who prosecute the inter-
diction shall produce witnesses and documents.
494.
The court shall order that the family-council
formed, according to the mode pointed out in section
4 of chap. 2, of the tide " Of Minority ^ Guardian^
skip, and Emancipation ,** shall give its judgment pn
the state of the person whose interdiction is de-
manded.
495.
They who shall have claimed the interdiction
shall not form part of the fs^ily-council : however
the husband or wife, and the children of the person
whose interdiction shall be claimed, may be admitted
thereto without having a deliberative v<Moe therein.
Title Xl.-'-Cf Migotity, Interdiction, ^. 1S7
496.
After having received the judgment of the family-
council^ the court shall interrogate the defendant in
the chamber of council $ if he cannot be present
there, he shall be interrogated at his dwelling, by
one of the judges commissioned for this purpose,
assisted by his registrar. In all cases the com-
missioner of government shall be present at the in-
terrogation.
497.
After the first interrogatory, the court shall, if
there be ground, appoint a provisional administrator,
to take care of the person and goods of the de-
fendant.
498.
Judgment on a petition for interdiction shall only
be given at a public hearing, the parties being heard
or summoned.
499.
In rejecting the petition for iiQterdiction, the
court shall be empowered neverthelejjs, if the circum-
stances require it, to order that the defendant shall
not thenceforward plead, make agrec^ment, borrow,
receive a moveable capital, nor give dlischarge there-
fore, alienate, nor encumber his pro]perty by mort-
gages, without the assistance of an adviser, who
shall be nominated for him by the sar ne judgment.
I
188 Book I.-^Of Persons. .
500.
In case of appeal from the judgment given in the
first instance, the court of appeal may, if it judge
necessary, interrogate anew the party whose inter-
diction is demanded, or cause him to be interro-
gated by a commissioner.
501.
Every judgment importing interdiction, or nomi-
nation of an adviser shall, on the instance of the
petitioners, be entered, signified to the party, and
inscribed within ten days on the schedules, which
shall be hung up in the hall of audience, and in the
. offices of the notaries of the circle.
502.
Interdiction on the nomination of an adviser shall
have its effect from the day of the judgment. All
acts past subsequently by the interdicted person, or
without the assistance of the adviser, shall be void
in law.
503.
Acts anterior to interdiction may be annulled, if
the cause of interdiction existed notoriously at the
period of making such acts.
504.
After the death of an individual, acts done by
>
him cannot be impeached for cause of insanity,
except so far as his interdiction shall have been
Titk X/.— Of Maj&rity, Interdiction, ^. 1S9
pronounced of claimed before his decease ; unless
the proof of insanity is derived from the tery act
impeached.
505.
If there be no appeal from the judgment of inter-
diction given in the first instance^ or if it is confirmed
on appeal, appUcation shall be made for the nomina-
tion of a guardian and of a supplementary guardian
for the interdicted person, according to the rules
prescribed under the tide, *' Of Minority, Gtuirdian-
ship, and Emancipation.^* The provisional admini-
strator shall suspend his duties, and render his ac-
counts to the guardian, unless he be such himself.
506.
The husband is of right the guardian of his wife
under interdiction.
507.
The wife may be nominated guardian of her hus-
band : in such case the family-council shall regulate
the form and conditions of the administration, saving
the remedy which shall be allowed in the courts to
the wife, who shall conceive herself injured by the
resolution of the family.
508.
No person, with the exception of the husband or
wife, ancestors and descendants, shall be bound to
hold the guardianship of a person interdicted beyond
140 Book /.— (y Persons.
ten years. At the expiration of that period^ the
guardian may demand and ^hall obtain the aubstitu-
tion of another.
509-
A person interdicted bears likeness to a minor,
as regards his person and his property ; the laws on
the guardianship of minors shall be applicable to the
guardianship of persons under interdiction.
510.
The revenues of a person interdicted ought par.
ticularly to be employed in alleviating his misfortune
and accelerating his cure. According to the sym-«
ptoms of his malady, and the state of his fortuue, the
family^ouncil shall be empowered to pass a resolu-
tion that he shall be attended in his own house, or
that he shall be placed in a house of health or even
in an hospital.
511.
When there shall be question concerning the mar-
riage ofthe child of a person under interdiction, the
dowry, or the advancement of the inheritance, and
the other matrimonial stipulations, shall be regulated
by the opinion of thi^ family*council, confirmed by
the court on the conclusions of the commi^ioner of
government.
51S.
The interdiction ceases with the causes which pro-
duced it } nevertheless the liberation shall not be pro-
TitkXI.^<yMq^fy,Interdktwn,^. 141
nounced l^ithout the observation of the formalities
prescribed in order to obtain the interdiction, and
the party under interdiction shall not reassume the
exercise of his rights until after judgment of libera*
tion.
CHAPTER III.
Of the Judicial Adviser.
518.
Prodigals may be forbidden to implead, to settle
disputes, to borrow, to receive any moveable capital,
and to give a discharge therefore, to aUenate, or to
encumber their property by mortgages, leidiout the
assistance of an adviser, nominated to them by the
court.
514.
Prohibition from proceeding without the assist-
ance of an adviser, may be claimed by such as have
a right to demand interdiction ; their petition must
be prosecuted and determined in the same manner.
This prohibition cannot be obtained without
observing the same form^ities.
515.
No judgment, in matter of interdiction, or of
nomination of adviser, shall be give neither in the first
instance or ly way of appeal, except upon the con-
clusions by the commissioner of government.
142 <:ffPropertjft S^c.
BOOK II.
»
OF PROPERTY, AND THE DIFFERENT MODI-
FJCATJ0N8 OF PROPERTY.
Decreed 25th of January, 1804. Promulgated February 4th.
TITLE L
OF THE DISTINCTION OF FROPERTT.
516.
All property is moveable or immoveable.
CHAPTER I.
Qfimmweable Property.
617.
Property is immoveable either by its nature, or
by its destination, or by the objects to which it is
applied.
518.
The soil of the earth and buildings are immove-
able by their nature.
«
519.
Wind or watermills, fixed on pillars and forming
part of a building, are also immoveable by their
nature.
Title I.^JOf the Distinction of Property. 143
520.
Crops hanging by the roots, and fruits not yet
gathered from the trees, are in like manner im«
moyeable.
As soon as grain is cut and the fruits plucked,
although not carried away, they become moveable*
If one part only of the crop is cut^ such part alone
is moveable.
521.
The cuttings of underwood of the ordinary kind
or forest trees made up in regular faggots, only
become moveable in proportion as the trees are
felled.
522.
The live stock which the proprietor of a farm gives
up to his tenant, or farmer, for the purposes of cul-
tivation, whether valued or not» are regarded as im-
moveable as long as they continue attached to the
farm in pursuance of the agreement.
Such as may be given in cheptel to others than
the farmer or cultivator are moveable.
523.
Pipes which serve to conduct water in a house^
or other possession, are immoveable, and form part
of the estate to which they are attached.
524.
Articles which the proprietor of a farm has placed
thereon, for the service and management of such a
farm, are immoveable by destination.
144 Book llr-^f TrofCTty^ kc.
Thus immoveables by destination, having been
placed by the propdetw £at the une and management
of hit far Hit are.
Beasts required for agricultural purposes ;
IsbplementB of husbandry ;
Seeds given to fanners or other cultivatom ;
Pigeons belonging to dove^houses ;
Rabbits in warrens ;
Bee-hives }
Fishuipondsg
Pressefly coppersp stills, vats, and tubs ;
In^lemeol» neceiaaxy for the working of forges,
paper-mills, and other machinery ;
Straw and manure.
Immoveable abo by destination are, all moveable
eiSecte which a proprietor has attached to a farm
to continue so for ever.
£85.
A pp^prietor is cooaideved to have attached
moveable effects to his estate for ever, when they
are fastened thereto by plaster, lime, or cement, or
when they cannot be sepiuated without being broken
«oA idaoQAged* or withwU; breaking or i^urii^ that
part of di€f eatatt ito uvUidi they ace attadbed«
The mirnarK lof an apartment are i^QMidered as
fixed for perpetual continuance, when the frame-
work on which they are iaatened forms part of the
bod^r cof the waioacot.
It is the aame witb recoct t^ fuctaces «nd other
ornaments.
Title L — Of the Distinction of Property. 145
As regards statues, they are immoveable when
they are placed in a niche formed expressly to receive
them, although they may be capable of removal
without breaking or damage.
526.
Immoveable in respect of the object to which they
are applied are,
The usufruct of immoveable things ;
Servitudes or agricultural services ^
Actions whose object is the recovery of immo-
veable property.
CHAPTER 11.
Of Moveables.
527.
Property is moveable in its nature or by the deter«
mination of the law.'
528.
Moveables in their nature are bodies which may
be transported from place to place, whether they
move themselves like animals, or whether like ina-
nimate things, they are incapable of changing their
place, without the application of extrinsic force.
529.
Moveables by determination of law are, bonds and
actions relating to sums demandable or personal
146 Boalc II.— Of Properly, &^x.
effects, actions and interests in companies for objects
of finance, commerce, or industry, although immove-
ables* depending on such undertakings belong to the
companies. These actions or interests are reputed
moveable with respect to each individual member,
as long as the society exists.
Moveable also by determination of law are perpe-
tual or life annuities, whether granted by the repub-
lic or by private persons.
Article decreed 2\st of March, 1804. Promulgated the 31*^ of
March,
580.
Every annuity granted in perpetuity as the price
of the sale of immoveable property, or as the condi-
tion of ceding an immoveable fund by free or charge-
able title, is in its nature redeemable.
It is nevertheless allowed to the creditor to regu-
late the provisions and conditions of redemption.
It is also permitted him to stipulate that such an-
nuity shall not be redeemed until after a certain
term, which shall in no case exceied thirty years;
every stipulation to the contrary is void.
581.
Boats, ferry-boats, vessels, mills, and floating-
baths, and generally all machinery not fixed on
piles and not forming part of the mansion, are move-
able : the seizure of some articles of this kind may
nevertheless, on account of their importance, be
Title I. — Of the Distinction of Property. 1 47
subject to particular forms, as shall be explained in
the code of ciVil procedure.
The materials arising from the demolition of an
edifice and those collected for the construction of a
new one, are moveable until they are employed by
the artificer in building.
53S.
The word ^' moveables** eniployed alone in the
regulations of law or an individual, without other
addition or designation, does not comprehend ready
money, jewels, credits, books, medals, instruments
of science, art^ and trade, body-linen, horses, equi-
pages, arms, grain,, wine,, hay, and other commodi-
ties ; in like manner, it does not comprehend objects
of commerce.
854.
The words '* goods moveable^'* only comprehend
moveables destined for the use and. ornament of
apartmeptS) aa tapestries^, beds^ seats, mirrors, clocks,
tables, china, and other objects of that nature.
Pictures and statues which ibrm 4>art of the fur-
niture of an apartment are also comprised therein,
but not collections of pictures which may be in
galleries or private rooms.
li is the same with respect to pieces of porcelain :
such only as form part of the decoration of an apart-
ment are comprised under the denomination of
** goods, moveable.**
l2
148 Book II.— Of Property, S^c.
585.
The expression " moveable goods^^^ that of " per-
sonalty,** or of ** personal property,** comprehend
generally all that is deemed " moveable** according
to the rules heretofore established.
The sale or gift of a furnished house only compre-
hends the •* moveable goods.**
536.
The sale or gift of a house, with all therein con-
tained, does not comprehend cash, nor credits, and
other rights of which the titles may be deposited
within the house ; all other personal efiects are con-
tained therein.
CHAPTER III.
Of Property, with Reference to those who are in the
Possession of it.
587.
Private persons have the free disposition of the
property belonging to them, subject to the modifica-
tions established by the laws.
Property not belonging to private persons is
administered, and cannot be alienated except in the
forms and in pursuance of the regulations peculiar
to it.
588.
Highways, roads and streets at the national charge,
rivers and streams which will carry floats, shores, ebb
Title L— Of the Distinction of Property. 149
and flow of the sea, ports, harbours, roads for ships,
and generally all portions of the national territory,
which are not susceptible of private proprietorship,
are considered as dependencies on the public do-
main.
589.
All property unclaimed and without owner, and
that of persons who- die without heirs, or of which
the succession is abandoned, belongs to the nation.
540.
Gates, moats, ramparts of places of war, and for-
tresses, form also part of the national domain.
541.
It is the same with respect to soils, fortifications,
and ramparts of places which are no longer places of
war ; they belong to the nation unless they have been
validly alienated, or unless their proprietorship has
been barred by prescription.
542.
Common property is that to the ownership or pro-
duce of which the inhabitants of one or more com-
munes have an acquired right.
543.
One may have over property either a right of
ownership, or a simple right of enjoyment, or only
claims for ground-services.
150 Book JL— Of Property, S^c.
TITLE II.
OF PROPERTY.
Decreed the 27th ofJamary, 1804. Promulgated the 6th of
February.
544.
Property is the right of enjoying and disposing of
things in the most absdiute manner, provided they
are not used in a way prohibited by the laws or sta-
tutes.
545.
No one can be compelled to give up his property,
except for the public good, and for a just and pre-
vious indemnity.
546.
Property in a thing, whether real or personal, con-
fers a right over all which it produces, and over all
connected with it by accession, whether naturally or
artificially.
This right is termed the " right qfaccessionJ
9f
CHAPTER I.
Of the Right of Accession over the Produce ofofiy
Thing.
547.
The natural or artificial fruits of the earth.
Civil advantages.
Title IL^Of Property. 151
The increase of animals, belong to the proprietor
by right of accession.
548.
The fruits produced by any thing only belong to
the proprietor on condition of reimbursing the ex-
penses of labour, tillage, and seed, incurred by third
persons.
549.
A party simply in possession is only entitled to
the fruits where he is so by good faith : in the oppo-
site case he is bound to render the produce with the
thing itself to the proprietor who claims it.
550.
He is in possession by good faith who possesses, as
proprietor, by virtue of a conveyance of the defects
of which he is not aware.
He ceases to be in possession by good faith from
the moment wherein he discovers such defects.
CHAPTER II.
Of the Bight of Accession over what is connected and
incorporated with any Thing.
551.
Every thing which is connected and incorporated
wi(h any thing belongs to the proprietor, according
to rules which shall be hereafter established.
152 Book Il^^Of Property, Sic.
SECTION I.
Of the Right of Accession rehtvody to Things immoveable.
552.
Property in the soil imports property above and
beneath.
The proprietor may make above all kinds of plan-
tations and buildings which he shall judge conve-
nient, saving the exceptions established under the
title ** Of Servitudes and Services relating to Land.^*
He may make beneath all buildings and excava*
tions which he shall judge convenient, and draw from
such excavations all the products which they are
capable of furnishing, saving the restrictions result-
ing from the laws and statutes relating to mines,
and from the laws and regulation of police.
553.
All buildings, plantations, and works upon the
soil or beneath the surface, are presumed to have
been made by the proprietor at his own expense,
and to belong to him, until the contrary be shown ;
without prejudice to the property which a third
person may have acquired or may acquire by pre-
scription, whether it be a vault beneath the building
of another, or any other part of the building.
\
554.
The proprietor of the soil having made buildings,
plantations, and works with materials which did not
Title IL^-^f Propertif. 15S
belong to him^ must pay the value thereof; )ie may
also be condemned in damages, and interest if there
be ground ; but the owner of such materials is not
allowed to remove them.
555.
When plantations, buildings, and works have been
made by a third person and with his own materials,
the proprietor of the soil has a right either to retain
them, or to oblige such third person to remove them.
If the proprietor of the soil demand the demoli-
tion of the plantations and buildings, it must be
done at his charge who made them and without any
indemnity ; he may. moreover be condemned in da-
mages and interest, if there be ground, for the injury
which may have been sustained by the proprietor of
the soil.
If the proprietor prefer preserving such planta-
tions and buildings, he owes a reimbursement for the
value of the materials and the price of the work,
without regard to the greater or less augmentation
of value which the soil has received. Nevertheless
if the plantations, buildings, and works have been
made by a third person evicted but not condemned
to a restitution of profits on account of his good
faith, the proprietor shall not demand the demoli-
tion of the said works, plantations, and buildings :
but he shall have his election, either to repay the
value of the materials and the price of workmanship,
or to reimburse a sum equal to the augmented value
of the estate.
IM BoQhlL—OfProperfy,^.
. 556.
The accumulations ^id increase of mud' formed
succesrively and imperceptibly oa the soil bordering
on a river or other stream, is denominated " attu-
vian/'
Alluvion is for the benefit of the proprietor of the
6hore, whether in respect of a river, a navigable
stream, or one admitting floats, or not j on condition,
in the first case, of leaving a landing-place or tow-
ing-path conformably to regulations.
557.
It is the same with regard to derelictions occa-
sioned by a running stream retiring insensibly from
one of its banks, and encroaching on the other ; the
proprietor of the bank discovered profits by the allu-
vion, without giving the proprietor on the opposite
side a right to reclaim the land which he has lost.
This right does not take place with regard to
derelictions of the sea.
558.
Alluvion does not take place with respect to lakes
and ponds, the proprietor of which preserves always
the land which the water covers when it is at the
pond's full height, even though the volume of water
should be diminished.
In like manner the proprietor of a pond acquires
no right over land bordering on his pond which may
happen to be covered by an extraordinary flood.
TiOe IL---Of Property. IM
559«
If a river or a^streatn^ navigable or not, carries
away by a sudden violenee a oonriderable and di-
stinguishable part of a field on its banks, and bears it
to a field lower, or on its^ opposite bank, the owner
of the part carried away may reclaim his property;
but he is required to make his demand' within a year.:
after this interval it is inadmissible, unless the pro*
prietOF of the field to which the part carried away
has been united, has not yet taken possession thereofw
560.
Islands, islets, and accumulations of mud formed
in the bed of rivers or streams navigablb, or admits
ting floats, belong to the nation, tf there be no title
or prescription to the contrary.
561.
Islands and accumulations of mud formed in rivers
and streams not navigable,, and oot admitting floats,
belong to the proprietors of the shore on that side
where the island is formed; if the island be not
formed on one side only, it belongs to the proprie-
tors of the shore on the two sides, divided by an
imaginary line drawn through the middle of the
river.
562.
If a river or other stream in forming itself a new
arm, divide and surround a field belonging to the
proprietor of the shore, and thereby form an island,
156 Book 11.^0/ Properljf, ^c.
such proprietor shall retain the ownership of his land,
although the island be formed in a river or in a na-
vigable stream or one admitting floats.
668-
If a river or a navigable stream, capable of admit-
ting floats or not, form a new course, abandoning its
ancient bed, the proprietors of the land newly occu-
pied take, by title of indemnity, the ancient bed
abandoned, each in proportion to the land of which
he has been deprived.
564.
Pigeons, rabbits, and fish passing to another dove-
house, warren, or pond, belong to the proprietors of
the latter, provided they have not been attracted by
fraud and artifice.
SECTION II.
Of the Right of Accession relativdy to moveable Property,
565.
The right of accession having for its object two
things moveable which belong to different masters,
is entirely subordinate to the principles of natural
equity.
The following rules shall serve as examples to
guide the judge in determining, in cases not pro-
vided for, according to the peculiar circumstances.
Title IL— Of Property. 157
566.
When two objects appertaming to different ma«
sters, which have been united in such a manner as to
form one whole, are nevertheless separable, so that
one can subsist without the other, the whole belongs
to the master of that which forms the principal part,
OQ condition of paying to the other the value of the
one which was united to it.
567.
That is to be deemed the principal part to which
the other was only united for the use, ornament, or
completion of the first
568.
Nevertheless, when the object united is much more
valuable than the principal one, and when it has
been employed unknown to the proprietor, the latter
may demand that the object united shall be separated
in order to be restored to him, even though it may
be attended with some deterioration of that to which
it was joined.
569.
If of two objects united in order to form one whole,
the one cannot be regarded as accessory to the other,
that shall be deemed the principal which is most con-
siderable in value, or in size if the value of both is
nearly equal.
570.
Ifan artisan or any person whatsoever has employed
a material which did not belong to him, in order to
158 BooJc IL-^^f Prqperiifj ^.
form, something of a new description, whether the
material can or cannot be restored to its original
shape, the rproprietor thereof has a right to claim
the thing which has been formed from it, on paying
the price of the workmanship.
571.
If however the workmanship were so important,
that it surpassed by much, the value of the material
employed, the labour shall then be deemed the prin-
qipal part, and the artificer shall have a right to
retain the thing wrought, on paying the price of the
material to the proprietor.
57a-
Where a person has made use of materials which
partly belong to him and in part do not, in order to
form an object of a new description, without having
destroyed any of the materials, but in such a way
that they cannot be separated without inconvenience,
the object is common to both proprietors; by reason
as respects the one of the materials belonging to him,
and in regard to the other by reason at once of the
nsaterial belo^ing to him, and the price of his work-
miuiship.
573.
When an object has been formed by the mix-
ture of many materials belonging to different propri-
etors, but of which no one can be regarded as the
principal material ; if such materials are capable of
Titk IL^OfProperhf.
being separated, he without whose knowledge such
materials were mingled, may demand the division
thereof,
«
If the materials are incapable of separation with-
out inconvenience, they acquire therein a common
property proportioned to the quantity, quality, and
value of the material belonging to each of them.
«
574.
If the material belonging to one of the proprietors
were far superior in quantity or value to the other,
in such case the proprietor of the material superior
in value may claim the thing produced by the mix-
ture, on paying to the other the price of his material.
575.
When an object tenlQijis in common between^ the
proprietors of the materials ^ of which it has been
formed, it ought to be sold by auction for their mu-
tual advantage.
576.
In all cases where a proprietor, whose material has
been made use of, without his knowledge^ in order
to form an object of a different description, can claim
a property in such object, he has the election of
demandiiig restitiition of his material, in kind, in
the same quantity, weight, measure, and goodness,
or its value.
^77.
Persons who shall have Employed materials be-
longing to others and without their knowledge, may
160 Book IL—Of Prapet^ty, 8^.
also be condemned in damages and costs if there be
ground, without prejudice to prosecution in an extra-
ordinary manner if there be occasion.
TITLE III.
OF USUFRUCT, RIGHT OF COMMON, AND OF
HABITATION.
Decreed the ZOth of January, 1804. Promulgated the 9th tf
February,
CHAPTER I.
Of Usfffruct.
578.
Usufruct is the right of enjoying things of which
the property is in another, in the same manner as
the proprietor himself, but on condition of preser-
ving them substantially.
579.
Usufruct is established by the law, or by the con-
sent of man.
580.
Usufruct may be established either simply, or to a
certain day, or conditionally.
581.
It may be established over every species of pro-
perty, moveable or immoveable.
Tiik IIL—qfUsufructy Bight of Conmon, ^. 161
SECTION I.
()f the Rigki of the Usufructuary.
582.
The usufructuary has a right to the enjoyment of
every species of benefit, whether natural, or artificial,
or civil, which the object of usufruct is capable of
producing*
583.
Natural benefits are those which the earth pro-
duces spontaneously. The production and increase
of animals are also natural fruits.
The artificial fruits of the soil are those which
are obtained by cultivation.
584.
Civil fruits are rents of houses, interest on sums
due, arrears of rent. The value of farms is also
ranged under the class of civil fruits..
585.
Natural and artificial fruits, hanging by branches
and roots at the period when the usufruct com-
mences, belong to the usufructuary.
Those which are in a similar state at the period
when the usufruct closes, belong to the proprietor,
without recompense on either side for tillage and
sowing, but without prejudice also to such portion
of the fruits as may be acquired by the joint-culti-
M
162 Book IL^Of Property, ^.
vatoFy if there were one at the commencement or
cessation of the usufruct.
586.
Civil fruits are reputed to accrue from day to day,
and belong to the usufructuary, in proportion to the
duration of his usufruct. This rule applies to the
value of farming leases, as well as to rents of houses
and other civil fruits. ^ •
587.
If the usufruct comprises objects which cannot be
used without destroying them, as money, grain, and
liquors, the usufructuary has a right to make use of
them, but on condition of restoring them at the end
of the usufruct in similar quantity, quality, and good-
ness, or their estimated value.
588.
The usufruct of an annuity confers likewise on the
usufructuary, during the continuance of his usufruct,
a right to the perception of the arrears, without ren-
dering him liable to any restitution.
589.
If the usufruct comprehend things which, without
being immediately consumed, are deteriorated by
little and little in the using, as linen and moveable
furniture, the usufructuary has a right to employ
them for the purposes to which they were destined,
and is only compelled to restore them at the end of
Tttk IIL—Of UmJruct,^Right of Common, S^c. 163
his usufruct in the state in which they may then be,
not being damaged by his fraud or fitult.
590.
If the usufruct comprehend underwood, the usu-
fructuary is bound to observe the order and propor-
tionate quantity of his cuttings, conformably to the
established usage and custom of proprietors, without
indemnity however to be made to the usufructuary
or his heirs, for ordinary cutting, whether of under-
wood, poles, or timber, which may have been omitted
during his enjoyment.
Trees which can be removed from a nursery-
ground without injuring it, do not therefore form
part of the usufruct except on the condition that the
usufructuary shall conform to the usage of such
places in restoring them.
591. •
The usufructuary receives the benefit likewise,
always conforming to the seasons and custom of the
ancient proprietors, of those parts of a wood of tall
trees as have been placed in regular cuts, whether
such cuts are made periodically over a certain extent
of ground, or whether they are made of a certain
number of trees taken indiscriminately over the
whole surface of the domain.
592.
In no other cases can the usufructuary touch full
grown timber-trees : he can only employ trees blown
m2
164 Book IL-^f Properh/t ^.
down or broken by accident, for the reparations to
which he is bound : he may however for that object
cause some to be felled in case of necessity, but on
condition of making such necessity appear to the
proprietor.
593.
He may take also in the woods props for vines :
he may take also from the trees, their annual or pe*
riodical produce : the whole according to the usage
of the country or the custom of the proprietors.
594.
Fruit-trees which die, those likewise which are
torn down or broken by accident, belong to the
usufructuary, on condition of replacing them by
others.
595.
The usufructuary may enjoy in his own person,
Iet«on lease to another, or even sell or transfer, his
right by gratuitous title. If he lets on lease, he must
conform, with regard to the seasons at which leases
ought to be renewed and as respects their duration,
to the regulations established relative to a husband
with regard to the property of a wife, under the
title " Of the Contract of Marriage and of the respect-^
ive Rights of married Persons.^*
596.
The usufructuary is entitled to the enjoyment of
the augmentation accruing by alluvion to the object
of his usufruct.
Title Ill.-^Of Usufruct, Right of Common, ^c. 165
597.
He enjoys the right of servitude, toll, and gene-
rally all the rights which the proprietor is capable of
enjoying, and he enjoys them in the same manner as
the proprietor himself.
598.
He enjoys also, in the same manner as the pro-
prietor, such mines and quarries as are in a course
of working at the commencement of the usufruct ;
nevertheless if there be question concerning a work-
ing which cannot be made without a grant, the usu-
fructuary shall not have the enjoyment thereof until
he shall have obtained the permission of govern-
ment.
He has no right over mines and quarries not yet
opened, nor over peat-bog, nor over treasure which
may be discovered during the continuance of his
usufruct.
599.
The proprietor cannot by his own deed, nor in any
possible manner, injure the rights of the usufruc-
tuary.
The usufructuary on his part cannot at the con-
clusion of his usufruct claim any indemnity for im-
provements which he may pretend to have made,
although the value of the thing may have been aug-
mented thereby.
He or his heirs may however carry away mirrors,
pictures, and other ornaments which he may have
166 Book Il.^^Of Property, S^.
caused to be put up, but on condition of restoring
their places to the original state.
SECTION II.
Of the OUigations of the Usufiructuaiy,
m
600.
The usufructuary takes things in the state in which
they are ; but he cannot enter into the enjoy mejit of
them, until he has caused an inventory of the move-
able, and a statement of the immoveable objects of
the usufruct, to be drawn up in the presence of the
proprietor, or after having duly summoned him.
601.
He must give security to enjoy like a careful hus-
bandman, unless he be dispensed therefrom by the
act constituting the usufruct: nevertheless the father
and mother having the legal usufruct of the property
of their children, the seller or donor with a reserva-
tion of usufruct, are not bound to give security.
602.
If the usufructuary cannot iind security, the im*
moveables are let on lease or put in sequestration ;
Sums comprehended in the usufruct are placed out;
Commodities are sold, and the price received there-
from is in like manner placed out ;
The interest on such sums and the prices of such
leases belong in this case to the usufructuary.
Titk IIL'-Of Usufruct, Right of Common, S^c. 167
608.
In default of security on the part of the usufruc-
tuary, the proprietor may require that such move-
ables as perish in the using should be sold, in order
that the price thereof may be placed out like that of
the commodities ; and then the usufructuary enjoys
the interest during his U3ufruct: the usufructuary
however may demand and the judges are empowered
to order, according to circumstances, that one por-
tion of the moveables necessary for bis use should
be lefl for him, on his simple security on oath, and
on condition of producing them at the expiration of
the usufruct.
604.
Delay in giving security does not deprive the usu-
fructuary of the fruits to which he may have claim j
they are his due from the moment at which the usu-
fruct commences.
605.
The usufructuary is only bound to necessary re-
parations.
Substantial reparations are at the charge of the
^proprietor, unless they have been occasioned by the
neglect of necessary repairs, since the commence-
ment of the usufruct: in which case the usufruc-
tuary is also bound to them.
606.
Substantial repairs are tiiose of the main walls and
168 Book If.— Of Property, ^c.
vaults, the re-establishment of beams, and entire
roofs ;
That of ditches and of buttresses, and enclosing
walls in entirety :
All other reparations are necessary repairs.
607.
Neither the proprietor, nor the usufructuary is
bound to rebuild what falls down through age, or
what is destroyed by mere accident.
608.
The usufructuary is bound, while his enjoyment
continues, to all annual chai*ges on the estate, such
as contributions and others which by custom are
considered charges on the fruits.
609.
With respect to charges which may be imposed
on property during the continuance of the usufruct,
the usufructuary and the proprietor contribute
thereto in manner following ;
The proprietor is obliged to pay them, and the
usufructuary must account to him for the interest ;
If they are advanced by the usufructuary, he hat
a right to recover them at the end of the usufruct.
610.
A legacy given by a testator, of an annuity or
alimentary pension, may be acquitted by the general
legatee of the usufruct in its entirety, and by the
TtOe III.— Of Usufruct, Right o/Ckmmon, fy:. 169
legatee having the general title of usufruct in the
proportion of his enjoyment, without any second
payment on their part*
611.
The usufructuary by particular title is not bound
by debts for which the estate is mortgaged : if he be
compelled to pay them he has his remedy against the
proprietor, saving what is said in article 10120, under
the title " Of Donations during Life and of Wills."
612.
The usufructuary either general or by general
title must contribute with the' proprietor to the pay-
ment of debts in manner following j
An estimate is made of the value of the estate the
subject of usufruct, a rate of contribution to debts
is then fixed in proportion to such estimate.
If the usufructuary is willing to advance the sum
which the estate must contribute, the capital is re-
stored to him at the termination of the usufruct
without any interest.
If the usufructuary is not willing to make such
advance, the proprietor has the election, either to
pay such sum, (and in this case the usufructuary must
account to him for the interest during the continu-
ance of his usufruct) or to cause a portion of the pro-
perty subject to usufruct, to the required amount, to
be sold.
618.
The usufructuary is only bound to the charges of
170 Book IL^^f Property, S^.
8uch proceedings at law as regard the enjoyment,
and of other judgments to which such proceeding
may give rise.
614.
If during the continuance of the usufruct a third
person is guilty of any usurpation on the estate, or
any other attempt against the rights of the proprie-
tor, the usufructuary is bound to give him informa-
tion against such intruder ; in default thereof he is
himself responsible for all damage which may result
therefrom to the proprietor, as he would be with
respect to injuries committed by himself.
615.
If the usufruct be established only over an animal
which happens to perish without the fault of the usu-
fructuary, the latter is not bound to restore another
for it, nor to pay its value.
616.
If a flock over which an usufruct has been esta-
blished perishes entirely by accident or by disease,
and without the fault of the usufructuary, the latter
is not bound towards the proprietor except to account
for the skins or their value.
If the flock does not entirely perish, the usufruc-
tuary is bound to replace them, until the increase
amounts to the number of those animals which pe-
rished.
Title II L— Of Usufruct, Right of Common, ^. 171
SECTION III.
Of the Manner in tohich Usufruct is put an end to,
617.
Usufruct is extinguished, ^
By the naturs^ and civil death of the usu-
fructuary }
By the expiration of the time for which it has
been granted \
By the consolidation or union in the same person
of the two qualities of usufructuary and proprietor ;
By the non-exercise of the right during thirty
years j
By the total loss of the object over which usu-
fruct was established.
618.
Usufruct may likewise cease by the abuse of
which the usufructuary is guilty in his enjoyment,
either by committing spoliation upon the estate, or
by suffering it to fall to decay for want of repair.
The creditors of the usufructuary may interfere
in controversies, for the preservation of their rights ;
tbey may offer amends for spoliation committed, and
guarantee for the friture.
The judges may, according to the importance of
the circumstances, either pronounce the absolute
extinction of the usufruct, or give order for the re-
entry of the proprietor into the enjoyment of the
172 Book IL—Of Properly, ^c.
object encumbered therewith, on condition of paying
annually, to the usufructuary or his agent, a fixed
sum up to the period at which the usufruct would
have ceased.
639.
Usufruct which is not granted to particular per-
sons, only lasts for thirty years.
620.
Usufruct granted until a third person has reached
a fixed age, continues until such period, although
such third person die before the age fixed.
621.
The sale of a thing which is the subject of usu-
fruct makes no alteration in the right of the usu-
fructuary ; he continues to enjoy his usufruct
unless he has formally renounced it.
622.
The creditors of an usufructuary may cause a
renunciation made to their prejudice to be annulled.
623.
If one part only of the thing subject to usufruct
be destroyed, the usufruct is preserved over the
Temaind^.
624.
If the usufruct be established over a building
only, and such building be destroyed by a fire or
TiOellL—OfUmfrucURightofOmmm, Sic. 17»
other accident, or if it have fallen down through
age, the usufructuary shall have no right to the en-
joyment either of the soil or the materials.
If the usufruct be established over a domain of
which a building forms a part, the usufructuary
shall enjoy the soil and the materials.
CHAPTER 11.
Of Common and Habitation.
625.
The rights of common and of habitation are
established and forfeited in the same manner as those
of usufruct.
626.
A person is incapable, as in the case of usufruct,
of enjoying them without previously giving security,
and without making lists and inventories.
627.
The commoner and he who has a right of habita-
tion ought to enjoy them like careful husbandmen.
628.
The rights of common and of habitation are go-
verned by the title which has established them, and
receive, according to its regulations, morie or less
extent.
174 Book II.~-Of Property, S;c,
629.
If this title is not explicit on the extent of these
rights, they are regulated as follows.
■
630.
' He who has commonage over the fruits of an
estate, cannot exact from thence more than is ne-
^ cessary to him for his own wants and those of his
family.
He may exact therefrom for the wants likewise of
children who have come to him subsequently to the
grant of commonage.
631.
The possessor of commonage cannot yield or let
his right to another.
632.
He who has the right of habitation in a house,
may dwell there with his family, even though he
should not have been married at the period when
such right was conferred upon him.
633.
. The right of habitation is confined to what is ne-
cessary for the habitation of him to whom such
right is conceded, and of his family.
684.
ft
The right of habitation caii neither be ceded nor
hired.
Title IV.— Of Servitudes, ^v. 175
6S5.
If the possessor of commonage absorb the whole
fruits of an estate, or if he occupy the entirety of a
house, he is subjected to the charges of culture, to
necessary reparations/ and to the payment of contri*
bution^ like an usufructuary.
636.
Commonage in woods and forests is regulated by
particular laws.
TITLE IV.
OF SERVITUDES OR MANORIAL SERVICES.
Decreed the 3ist of January ^ 1804. Promidgaied the lOih qf
February,
637.
A servitude is a charge imposed upon an estate
for the use and benefit of an estate belonging to
another proprietor.
638.
Servitude does not establish any pre-eminence of
ft
one estate over another.
639.
It is derived either from the natural situation of
places, or from obligations imposed by law, or front
agreements between proprietors.
176 Book IL'-Qf Property, ^,
CHAPTER I.
Of Servitudes derived from the Situation of Places.
0
640.
Inferior lands are subjected^ as regards those which
lie higher, to receive the waters which flow natural-
ly therefrom to which the hand of man has not
contributed.
The proprietor of the lower ground cannot raise
a bank which shall prevent such flowing.
The superior proprietor of the higher lands cannot
do any thing to increase the servitude of the lower.
641.
He who possesses a spring within his field may
make use of it at his pleasure, saving the right which
the proprietor of a lower field may have acquired by
title or by prescription.
642.
Prescription in such case can only be acquired
by an uninterrupted enjoyment during the space of
thirty years ; to be computed from the moment at
which the proprietor of the lower field has made and
completed the works apparently designed to facili-
tate the fall and course of the water within his pror
perty.
TUle ir.-^Of Servitudes, 850. 177
648.
The proprietor of a spring cannot change the
course thereof when it supplies the inhabitants of a
commune, village, or hamlet, with water for their ne-
cessary Use ; but if the inhabitants have not acquired
the use of it by prescription or otherwise, the pro-
prietor may qiaim an indemnity, to be settled by
competent persons.
644.
He whose property borders on a running water^
other than that which is declared a dependency on
the public domain by article 538, under the title
" Of the Distinction of Property ^ may employ it in its
passage for the watering of his property.
He whose estate is intersected by such water, is
at liberty to make use of it within the space through
which it runs, but on condition of restoring it, at
the boundaries of his field, to its ordinary course.
645.
If a dispute arise between proprietors to whom
such waters may be useful, the courts, in pronoun-
cing their judgment, must reconcile the interest of
agriculture with the respect due to property ; and in
all cases particukr and local regulations on the
course and use of waters must be observed.
646.
Every proprietor may compel his neighbour to
determine the boundaries of their contiguous pro-
N
1 78 Book IL'-^f Property, S^.
perties. Such determining of boundaries must be
at their common expense.
647.
Every proprietor may enclose his estate, saving the
exception contained in article 682.
648.
The proprietor who is desirous of enclosing his
land, loses his right to the free pasturage and waste
land, in proportion to the land which he withdraws.
CHAPTER II.
Of Servitudes established by Law*
649.
Servitudes established by law have for their object
the public benefit, or that of the commune, or of
private persons.
650.
Those established for the public benefit, or that
of the commune^ have for their object footways
by the side of navigable rivers or streams admitting
float9> the construction or reparation of roads, and
other public works, or those relating to the commune.
Every thing relating to this species of servitude,
is determined by the laws, or by particular regu-
lations.
Title IV.^Of Servitudes, (^. 179
661.
The law subjects proprietors to different obliga-
tions as respects each other^ independently of all
convention.
652.
Part of these obligations is regulated by the laws
touching rural police.
Others relate to party-walls and ditches, and the
cases in which supporting walls are necessary, to
views over the property of the neighbour, to the
dropping of water from house-eaves, to rights of
way.
SECTION II.
Of the Party 'WaU and Ditch.
653.
In towns and fields every wall which serves as a
boundary between buildings, even to its base, or be-
tween courts and gardens, or even between enclo-
sures in the fields, is presumed party, if there be no
title or mark to the contrary.
654.
It is a mark of non-partition when the summit of
the wall is straight and perpendicular with its base
on one side, and presents on the other an inclined
plane. Again, when there is on one side only a
coping, or ridges, and shouldering-pieces of stone,
which might have been placed there in building the
wall.
N S
180 Book IL-^-Of Property, ^tr.
In such cases the wall is deemed to belong exclu-
sively to the proprietor on whose side are the eaves
or corbels, and ridges of stone.
655.
The reparation and rebuilding of the party^'Wall
are at the expense of all those who have claim
thereto; and in proportion to the claim of each.
656.
Nevertheless each joint-proprietor of a party-wall
may relieve himself from contributing to the repa-
rations and rebuilding by abandoning his claim of
partition, provided that the party-wall do not sustain
a building belonging to him.
657.
Every joint-proprietor is at liberty to build against
a party-wall, and to place beams and joists in the
whole thickness of the wall, except fifty-four milli-
metres (two inches) without prejudice to the right
which his neighbour has to cause the beam to be
reduced by the chisel to half the thickness of the
wall) in case the latter shall desire to fix beams in
the same place, or to build a chimney against it.
658.
Every joint-proprietor may cause a party-wall to
be built higher, but he must alone defray the expense
of such elevation, of the necessary reparations above
the height of the common enclosure, and further-
more of an indemnity against the expense in the
Titk IV.'-Of Servitudes, ^. 181
rate of the additional building and according to the
value.
659.
If the party- wall ia not in condition to support the
additional building, he who desires to elevate it must
cause it to be entirely rebuilt at his own expense,
and the excess in thickness must be taken from his
own side.
660.
The neighbour who has not contributed to the
elevation may acquire right of partition by paying
half of the expense it has cost, and the value of one
moiety of the soil furnished for the excess of thick-
ness, if there be any.
661.
Every proprietor joining a wall has in like man)-
ner the power of rendering it common, in whole or
part, by paying to the owner of the wall the half ol
its value, or the half of the value of that portion
which he desires to make common, and the half ol
the value of the soil on which the wall is built.
662.
One of two neighbours must not form in the body
of a party-wall any hollow, nor apply or lean any
woric against it without the consent of the other, or,
on his refusal, without having directed, under the
advice of competent persons, the necessary nieans
for erecting such new work without injury to the
rights of the other.
182 Book Il.^^f Property, S;c.
668.
Each inhabitant of a town or suburb can compel
his neighbour to contribute to the construction and
reparation of the enclosure forming the boundary of
their houses, courts^ and gardens situated within the
Jiaid towns and suburbs : the height of the enclosure
shall be fixed according to particular regulations or
constant and acknowledged usages ; and in defect of
such usages or regulations, every boundary wall be-
tween which two neighbours shall for the future be
constructed or rebuilt, must be at least thirty-two de-
cimeters (ten feet) high, including the coping, within
towns containing fifty thousand souls and upwards,
and twenty-six decimeters (eight feet) in others.
664.
When the different stories of a house belong to
different proprietors, if the titles to the property do
not regulate the mode of reparations and reconstruc-
tions, they must be made in manner following :
The main walls and the roof are at the charge of
all the proprietors, each in proportion to the value
of the story belonging to him.
The proprietor of each story makes the floor be-
longing thereto.
The proprietor of the first story erects the staircase
which conducts to it ; the proprietor of the second
story carries the stairs from where the former ends
to his apartments ; and so of the rest.
665.
On the rebuilding u partition-wall or a house, the
Jitle IF.-'^f Servitudes, ^. 18S
servitudes, active and passive, continue with respect
to such new wall or house, without power neverthe-
less to increase them, and provided the reconstruc-
tion have taken place before a right by prescription
has been acquired.
666.
All. ditches between two estates are presumed
common if there be.no title or proof to the contrary.
667.
It is a proof that a ditch is not common when the
bank or earth thrown up is found only on one side
of it.
668.
The ditch is deemed to belong exclusively to him
on whose side the earth is found to be thrown up.
669.
A common ditch roust be maintained at the com-
mon charge.
670.
Every hedge which separates two estates is re-
puted common, unless there be only one of the
estates in an enclosed condition, or unless there be
vouchers or sufficient possession to prove the con-
trary. *
671.
It is not allowable to plant trees of lofty trunk,
but at the distance prescribed by particular regula-
tions actually existing, or by constant and acknow-
ledged usages; and in default of regulations and
IM Book 11^— Of Property, S^.
usages only at the distance of two metres from the
line which separates the two estates in the case of
trees of lofty trunk, and at the distance of half a
metre in the case of other trees and quick hedges. ^
678.
A neighbour may require trees and hedges planted
at a less distance to be pulled up.
He whose property is overshadowed by the
branches of his neighbour's trees, may compel the
latter to cut off such branches.
If it be the roots which encroach on his estate, he
has a right to cut them therein himself.
678.
Trees which are found in a common hedge are
common like the hedge ; each of the two proprietors
has the right to require that they should be felled.
SECTION II.
Of the Distance and intermediary Works required Jbr certain
Buildings.
674.
He who causes a well or a cess-pool to be dag
near a wall partition or not,
He who wishes a chimney to be built there, or a
hearth, a forge, or oven, or a kiln.
To build a stabb against it»
Or to form against such wall a magazine of salt,
or a heap of corrosive substance,
Tit^ IV.— Of Servitudes, S^. 186
Is obliged to leave the distance prescribed by par-
ticular regulations and usages on subjects, or to form
the works prescribed by the same regulations and
usages, in order to avoid injury to his neighbour.
SECTION III.
Of Vietot over a Neighbours Property.
One of two neighbours cannot without the consent
of the other form in the partition- wall any window
or aperture, in any manner whatsoever, even a fan-
light.
676.
The proprietor of a wall which is not commouj
joining immediately the estate of another, may form
in such wall lights or windows of wire-lattice, and
fan-lights.
These windows must be furnished with a lattice*
work of iron, the meshes of which shall extend to an
opening of one decimeter, (about three inches eight
lines at the most) and with a dormant window.
«
677.
These windows or lights must not be less than
twenty-six decimeters (eight feet) above the floor
or base of the chamber which is desired to be lighted,
if it be the ground-floor, and nineteen decimeters
(six feet) above the floor for the upper stories.
186 Book IL—Of Property, S^c.
678.
A party must not have direct views nor windows
for sight, nor balconies or other similar projections
over the estate enclosed or unenclosed of his neigh-
bour, within the distance of nineteen decimeters
(six feet) between the wall on which they are formed
and the aforesaid estate.
679.
A party shall not have side or oblique views over
the same estate within the distance of six decimeters
(two feet).
680.
The distance mentioned in the two preceding
articles is computed from the exterior basement of
the wall in which the aperture is made, or if there
be balconies or other similar projections from their
exterior line to the boundary line of the two pro-
perties.
SECTION IV.
Ofihe Droppings of Hotue'Eaves.
681.
Every proprietor must so form his roofs, that the
rain-water shall drop upon his own land or the public
way J he must not suflTer it to flow upon his neigh-
bour's land.
Title IV^-^f Servitudes, S^. 1 87
SECTION V.
Of the Right of Way.
682.
Every proprietor whose fields are surrounded, and
who has no outlet to the pubUc road, may claim a
passage over the fields of his neighbours for the agri-
cultural purposes of his estate, on condition of an
indemnity proportioned to the injury which he may
occasion.
68S.
The road ought regularly to be taken on that
side where the passage is the shortest from the^rm
surrounded to the public highway.
684.
Nevertheless it ought to be fixed in that spot
where it can occasion the least injury to him over
whose farm it is granted.
685.
The action for indemnity, in the case provided
for in article 682, may be prescribed against ; and
the road must be continued though the action for
indemnity be no longer admissible.
188 Book IL—Of Prwperty^ l^c,
CHAPTER m.
Of Servitudes established by the Act of Man.
SECTION L
()/ihe difererU Speda of Servitudes wkkk way he eetMithed over
Property.
686.
It is allowed to proprietors to establish over
their property, or in favour of their property, such
servitudes as seem good to them, provided neverthe-
less that the services established be not imposed
either on a person, or in favour of a person, but only
on an estate and for the benefit of an estate, and
provided moreover such services contain nothing
contrary to public order.
The mode of using and extent of servitudes thus
established, are governed by the document which
constitutes them ; in default of such document, by
the rules hereafter given.
687.
Servitudes are established either for the use of
buildings, or for that of landed estates.
Those of the first species are called urbane whether
the buildings to which they are due are situated in
a town or in a field ;
Those of the second species are called rural.
688.
Servitudes are either continual or interrupted.
Tttk IV. --Of Servitudes, 8sc. 189
Continual servitudes are those whose use is or may
be continual without having a necessity for the posi-
tive act of man : such are water-pipes, house-eaves,
windows, and other things of that description.
Interrupted servitudes are those which require the
positive act of man for their exercise : such are
rights of way, of drawing water, of pasture, and other
similar ones.
^89.
■
Servitudes are apparent or non-apparent.
Apparent servitudes are those which are mani-
fested by external works, such as a gate, a window,
or aqueduct. Non^apparent servitudes are those
which have no external sign of their existence, as
for example a prohibition to build upon a field, or
against building beyond a determinate height.
SECTION II.
Of the Mode of establishing Servitudes,
690.
Continual and apparent servitudes are acquired
by deed, or by possession for tliirty years.
691.
Continual pon-apparent servitudes, and inter--
rupted servitudes whether apparent or not, can only
be established by deeds.
Even immemorial possession dpes not suffice to
establish them j without power nevertheless to im-
190 Book IL — Of Property, SfC.
peach at the present time servitudes of this nature
already acquired by possession in districts where
they may have been acquireable in this manner.
692.
The appointment of the father of a family is equi-
valent to a deed as regards continual and apparent
servitudes.
698.
There is no appointment by the father of a family
but when it is proved that the two farms actually
divided have belonged to the same proprietor^ and
that it is by him that things have been put into the
state whence results the servitude.
694.
If the proprietor of two estates, between which
there exists an apparent sign of servitude, disposes
of one of these estates, without inserting in the con-
tract any stipulation relative to the servitude, it con-
tinues to exist actively or passively in favour of the
land alienated, or over the land alienated.
695.
The deed constituting servitude, as far as respects
those which cannot be acquired by prescription, can
only be supplied by a document acknowledging the
servitude, and emanating from the proprietor of th^
estate subject to servitude.
Title IV. --Of Servitudes, 8^. 191
696.
When a servitude is established, it is considered
that every thing is granted which is necessary in
order to make use of it.
Thus the servitude of drawing water at another^s
fountain necessarily imports a right of way.
SECTION HI.
0/the R^his of the Proprietor of the Estate to tvAicA the Servitude
is due,
697.
He to whom a servitude is due has a right to form
all the works necessary to make use of and preserve
it.
698.
These works are at his own expense, and not at
that of the proprietor of the estate subjected to ser-
vitude, unless the deed establishing the servitude
declare the contrary.
699.
In the case even where the proprietor of an estate
subjected to servitude is charged by the deed with
the construction at his own expense of works neces*
sary for the usage or preservation of the servitude,
he may always get rid of such charge, by abandoning
the estate subjected to servitude to the proprietor
of that estate to which the servitude is due.
19S Book II.^^flPr&perty\ Sgc.
700.
If the estate for the benefit of which the servitude
has been established happens to be divided, the
servitude remains due for each portion, provided al-
ways, nevertheless, that the burden of the estate
subjected to servitude shall not be aggravated.
Thus for example if the case be respecting a right
of way, all the joint proprietors shall be obliged to
exercise it by the same path.
701.
The proprietor of an estate from which a servitude
is due can do nothing which tends to diminish the
usage thereof or to render it less commodious.
Thus he cannot change the condition of places,
nor transport the exercise of the servitude into a
place different from that in which it has been ori-
ginally assigned.
Nevertheless, if this original assignment has be-
come more burdensome to the proprietor of the
estate subjected to the servitude, or if he is prevented
from making there advantageous repairs, he may
offer to the proprietor of the other estate a place
equally commodious for the exercise of his rights,
and the latter shall pot be at liberty to refuse.
702.
On the other hand, he who claims the servitude,
can only use it according to his title, without power
to effect either in the estate which owes the servitude^
. fnUe IV.— Of Servitudes, 4«. 198
-in. the estate to which it is due, any change which
ag^avates the condition of the former.
SECTION IV.
Of the Manner in xiokich Serxntudes are extingmihed.
708.
Servitudes cease when things are in such a state
that it is impossible any longer to make use of them«
704.
They revive if things are reestablished in such a
manner that they can be made use of; unless a suf-
ficient sp^ce of time have already elapsed to raise a
presumption that the servitude has been extinguished^
as is described in article 707-
705.
Every servitude is extinguished when the estate
to which it is due, and that which owes it, are united
in the same hands.
706.
Servitude is extinguished by non-usage during
thirty years.
707.
The thirty years begin to run according to the
different species of servitudes, either from the day
on which they have ceased to be enjoyed, when the
case regards interrupted servitudes, or from the day
•
194 Book IL^Of Property, Sfc.
on which an act has been made contrary to the aef'
vitude, in the case of continual servitndea.
708.
The mode of servitude is subject to prescripticm
like the servitude itself and in the same manner.
709-
If the estate in favour of which the scmtade is
established belong to- several coparceners, the enjoy-
ment by one precludes prescription with regard to
all.
710.
If among the joint-proprietors there be one against
whom the prescription has not been able to run, as
a minor, he shall have preserved the right for all the
others.
BOOK III.
OF THE DIFFERENT MODES OF ACQUIRING
PROPERTY.
Decreed the I9tk of April, 1808. Promulgated the 20M of the same
Month,
GENERAL DISPOSITIONS.
711.
Ownership in goods is acquired and transmitted
by succession, by donation between living parties,
or by wilLand by the effect of obligations.
TtOe IIL— Of General Dispositions. 195
712.
Ownership is acquired also by accession, by incor-
poration, and by prescription.
713-
Property which has no owner belongs to the nation.
714*
There are diings whicb belong to no one, and the
use whereof is common to all.
The laws of police regulate the manner of enjoy-
ing such.
715.
The right of hunting and fishing is alike regulated
by particular laws.
716.
Property in a treasure discovered in a man's own
field belongs to himself: if discovered in another
person's field, one moiety thereof belongs to him who
discovered it, and as regards the other moiety to the
proprietor of the field.
Treasure is every thing concealed or hidden in
the earth over which no one can prove property, and
which is discovered purely by the effect of chance.
717-
Claims respecting property thrown into the sea,
respecting objects which the sea casts up, of what
nature soever they may be, over plants and herbage
o9
196 Book III.— Modes of acquiring Property.
which grow on the banks of the «ea, are also regu-
lated by particulr laws.
It is the same with regard to things lost whereof
the owner does not appear.
TITLE I.
OF SUCCESSIONS.
Decreed the 1 9th of April, 1 803. Pramwlgaied the 29th of the tame
Month.
CHAPTER I.
Of the Opening of Successions^ and qfthe Seisin qf
Heirs.
718.
Successions are opened by natural death and by
civil death.
719.
A succession is opened by civil death from the
moment at which that death is incurred, conform-
ably to the regulation? of chap. 2, section 3, of the
title, ** Of the Enjoyment and Privation of Civil
Rights:'
720.
If several persons, respectively called to the suc-
cession of each other, perish by one and the same
accident, so that it is not possible to ascertain which
of them died first, the presumption of survivorship is
determined by the circumstances of the event, and
ih defect of such, by force oif age and sex.
Title I.-^QfSucccmons. W
721.
If those who perished together were under fifteen
years, the eldest shall be presumed to have survived.
If they were all above sixty, the youngest shall be
presumed to have survived.
If some were under fifteen years, and others more
than sixty, the former shall be presumed to have
survived.
722.
If those who perished together were of the age
of fifteen years complete, but less than sixty, the male
is always presumed to have survived, where there is
equality of age, or if the difference which exists does
not exceed one year.
If they were of the same sex, the presumption of
survivorship which gives rise to succession accord*
ing to the order of nature must be admitted ; thus
the younger is presumed to have survived the elder*
728.
The law regulates the order of succeeding be<^
tween legitimate heirs ; in defect of such, the pro-
perty passes to natural children, afterwards to the
father or mother surviving ; and if there be neither
of those, to the state*
724.
The lawful heirs are seised in full right of the pro-
perty, claims, and funds of the deceased, under the
obligation to discharge all the expenses of the suc-
cession : natural children, the spouse surviving, and
the state, must cause themselves to be put in pos-
198 Book IIL^^Modes qf acquiring Property.
sesdon by act of law» in the forms which shall be de-
termined.
CHAPTER IL
Of^e Qualities requisite to succeed.
725.
In order to succeed, the party must of necessity
be in existence at the moment at which the suc-
cession is opened.
Those incapable of succeeding are,
1st. He who is not yet conceived ;
2d. The child who is not born likely to live ;
Sd. He who is civilly dead.
726-
A foreigner is not permitted to succeed to pro-
perty which his relation, foreigner or French man^
possesses in the territory of the republic, except
in those cases and in the manner in which a
Frenchman succeeds to his relation possessing pro-
perty within the country of such foreigner, con-
formably to the regulations of article 11, under the
title " 0/ the Privation and Forfeiture of Gvil
Rights.''
727.
Unworthy to succeed, and as such excluded from
successions, are,
1st. He who shall be condemned for having caused
or attempted to cause the death of the defunct ;
2d. He who has brought against the defunct a
capital charge adjudged calumnious ;
TUl^ f.r-^f Su^c/^mns. 199
3d. The heir being of age, who, being informed of
the murder of the defunct, shall not have denounced
it to the oflScers of justice*
728.
This failure of denunciation a^nnot be objected to
the ancestors and descendants of the murderer, nor
to his connexions in the same degree, nor to the
husband or wife, nor to his brothers or sisters, nor to
his uncles and aunts, nor to his nephewsvand nieces.
729.
The heir excluded from the succession for causie.
of unworthiness, is bound to restore all the fruits
and revenues of which he has had the enjoyment
since the opening of the succession.
780.
The children of such unworthy person, coming to
the succession in their own right, and without the
aid of representation, are not excluded by the fault
of their father ; but the latter cannot in any case
claim, over the property of such succession, the
usufruct which the law allows to fathers and mothers
over the property of their children.
200 Book IIL'^Modes of acqtAring ProperUf*
CHAPTER iU.
Of the different Orders qfStuxesmn.
SECTION I.
General Ditpontiatu.
7»1.
Successions are decreed to the children and de^^
scendants of the deceased, to his ancestors and col-
lateral relations, in the order and according to the
rules hereafter determined.
•
782.
The law considers neither the nature nor the
origin of property in order to regulate the succession
thereto.
788.
Every succession which falls to ancestors or col-
laterals, is divided into two equal parts ; one for the
relations of the paternal line, the other for relations
of the maternal line.
Uterine relations, or children of the same father,
are not excluded by germanes ; but they only take
share in their own line, saving what shall be declared
in article 752. Germanes take part in the two lines.
There is no devolution from one line to another,
except when no ancestor or collateral can be found
in one of the two lines.
lltie I.—QfSuccessiotu. 201
This first division being effected between the pa^
ternal and maternal lines, no further division is made
between the different branches ; but the moiety de-
volved upon each line belongs to the heir or heirs
nearest in degree, saving the case of representation,
as shall be spoken of hej* eafter.
785.
The proximity of relationship is established by the
number of generations ; every generation is called a
degree*
786.
The series of degrees forms the line ; the series of
degrees between persons descending from each other
is called the line direct; the line collateral is the
series of degrees between persons who do not descend
from each other, but who are descended from a com-,
mon author.
Tlie line direct is distinguished into the line direct
descending and the line direct ascending.
The first is that which connects the head with
those who descend from him; the second is that
which connects a person with those from whom he;
descends.
787.
In the direct line are computed as many degrees
as tbcare are generations between the persons : thus
the son is, with respect to his father, in the first
90ft Book IIL^^Modes qf acguitv^ Property.
degree } the grandson in the second ; and in like man-
ner the father and grandfather with r^pect to tons
and grandsons.
7S8.
In the collateral line the degrees are computed by
generations, from one of the relations to, but not in-
cluding their common author, and from the latter to
the other relations.
Thus two brothers are in the second degree ; the
uncle and the nephew are in the third degree ; cou-
sins-german in the fourth ; and so of the rest.
SECTION II.
Of RepresenkUum*
789.
Representation is a fiction of law, of which the
effect is to cause representatives to enter into, the
place, the degree, and the rights of the party repre-
sented.
740.
Representation takes place to infinity in the direct
descending line.
It is admitted in all cases, whether the children of
the deceased come in competition with the descend-
ants of a child previously dead ; or whether all the
children of the deceased having died before him, the
descendants of such children are found to be in
equal or unequal degrees toward them.
741.
Representation does not take place in favour of
ancestors; the nearest in each of the two lines
always excludes the more distant.
742.
In the collateral line, representation is admitted in
favour of children and descendants of brothers and
sisters of the deceased, whether they come to the
succession concurrently with uncles or aunts, or
whether all the brothers and sisters of the deceased
being previously dead, the succession is found to be
devolved upon their descendants in equal or un-
equal degrees.
748.
In all cases where representation is admitted, the
petition is effected by stocks : if one original stock
have produced several branches, the subdivision is
made also by stocks in each branch, and the mem-
bers of the same branch make distribution between
themselves by heads.
744.
There is no representation of persons living, but
only of those who are civilly or naturally dead.
There can be no representation of a person the
succession to whom is renounced.
204 Book III^^Modes qf acquiring Property.
SECTION III.
745.
Children or their descendants succeed to their
father and mother, grandfathers, grandmothersy or
other ancestors, without distinction of sex or primo-
geniture, and although they be the issue of different
marriages.
. They succeed by equal portions and by heads
when they are all in the first degree and called in
their own right : they succeed by stocks, when they
come all or in part by representation.
SECTION IV.
Of Succeuiomi devohmg i^m Ancntars.
746.
If the deceased has left neither posterity, nor
brother, nor sister, nor descendants from them, the
succession is divided into moieties between the
ancestors of the paternal line and the ancestors
of the maternal line.
The ancestor who is found in the nearest degree
receives the moiety allotted to his line, to the exclu-
sion of all others.
Ancestors in the same degree succeed by heads.
747.
Ancestors succeed, to the exclusion of all others,
to things by them given to their children or de«
Titk L-^-Of Successions. 206
scendants dead without issue, when the objects given
are found again in kind in the succession.
If the objects have been alienated, the ancestors
receive the price which may be therefore due.
They succeed also to the action for recovery which
the donee may have.
•
748.
When the father and mother of a party dead
without issue have survived him, if he has left bro»
thers, sisters, or descendants from them, the suc-
cession is divided into two equal portions, of which
a moiety only devolves upon the father and mother,
who share it equally between them.
The other moiety belongs to the brothers, sisters,
or descendants from them, as shall be explained in
section 5 of the present chapter.
749.
In the case where a person dead without issue
leaves brothers, sisters, or descendants from them, if
the father or the mother be previously dead, the por*
tion which in such case would have devolved con-
formably to the preceding article, is re-united to the
moiety accruing to the brothers, sisters, or their re-
presentatives, as shall be explained in section 5 of
the present chapter.
a06 Book III.-^Modes of acquiring Property.
SECTION V.
OfeoOaierai Successions.
750.
In case of the previous decease of the father and
mother of a person dead without issue, his brothers,
sisters, or their descendants are called to the suc-
cession, to the exclusion of the ancestors and other
collaterals.
They succeed, either in their own right, or by re-
presentation, as has been regulated in section S of
the present chapter.
751.
If the father and mother of the party dead without
issue have survived him, his brothers, sisters, or their
representatives are only called to a moiety of the
succession.
If the father or the mother only has survived, they
are called to the enjoyment of three-fourths.
752.
The distribution of the moiety or of the three-
fourths devolved upon the brothers or sisters, ac-
cording to the terms of the preceding article, is
effected between them by equal portions, if they are
all by the same bed } if they are by different beds,
a division is made of a moiety between the two lines
paternal and maternal of the deceased ; thegermanes
take part in bath lines, and the uterine relations and
those on the father's side each in their own line
only } if there are brothers and sisters on one side
only^ they succeed to the whole, to the exclusion of
all the other relations of the other line.
758.
In default of brothers or sisters or descendants
from them, and in default of ancestors in one or
other of the lines, the succession devolves as regards
one moiety on the surviving ancestors ; and as re«
gards the other moiety, on the nearest relations of
the other line.
If there be a competition of collateral relations in
the Slime degree^ they share by heads.
754.
In the case of the preceding article, the father or
mother surviving has the usufruct of a third of the
goods to which he does not succeed in property.
755.
Relations beyond the twelfth degree do not suc<*
ceed. In default of relations capable of succeeding
in one line, the relations of the other line succeed as
regards the whole.
"SOS Book IIL-^Modes qf acquiring Property.
y
, CHAPTER IV.
Of irregular Successions.
SECTION L
€ifihe RigkU of Natural CkOdren over the Property oftkeir Father
or Mother, and of the Succeaion to Natural Children
dead wthout issue.
756.
Natural children are not heirs ; the law does not
grant to such any rights over the property of their
father or mother deceased, except when they have
been legally recognised. It does not grant to them
any right over the property of relations of their
father or mother.
7«7.
The right of the natural child over the property
of the father or mother deceased, is regulated in the
following manner :
If the father or mother has left lawful descendants,
such right extends to one-third of the hereditary por-
tion which the child would have had if he had been le«
gitimate : it extends to a moiety when the father or
mother does not leave descendants, but many an-
cestors, or brothers, or sisters ; to three-fourths when
the father or mother does not leave either descend-
ants or ancestors, either brothers or sisters.
. Titk I.— 0/ Successions. 209
758,
The natural child has a right to the whole of the
property, when his father or mother does not leave
relations of a degree capable of succeeding.
759.
In case of the previous decease of the natural
child, his children or descendants may claim the
rights fixed by the preceding articles.
760.
The natural child or his descendants are bound to
deduct from what they have the right to claim, all
which they have received from the father or the
mother whose succession is opened, and which shall
be subject to account, according to the rules esta-
blished in section St of chapter 6 of the present
title.
761.
All claim is forbidden them, when they have re-
ceived in the lifetime of their father or mother, the
half of what is allowed them by the preceding ar-
ticles, with an express declaration on the part of their
father or mother, that their intention is to reduce
the natural child to the portion which they have as-
signed him.
In the case in which this portion shall be inferior
to the half of what ought to come to the natural
child, he shall not be at liberty to claim more than
210 Book III.^^Modes ofacqtaring Property.
the additional sum necessary to complete such
moiety.
762.
The regulations of articles 757 and 758 are not
applicable to children who are the fruit of adulterous
or incestuous intercourse.
The law awards to them a subsistence merely.
763.
This subsistence is regulated by consideration of
the ability of the father or mother, the number and
quality of legitimate heirs.
764.
When the father or mother of an adulterous or
incestuous child shall have caused him to learn a
mechanical art, or when one of them shall have se-
cured to him a subsistence while living, the child
cannot set up any claim against their succession.
765.
The succession to a natural child deceased without
issue, devolves upon his father or mother who may
have acknowledged him ; or by moieties to both, if
he has been acknowledged by both.
766.
In case of the previous decease of the father and
mother of the natural child, the property which he
Titk L— Of Successions. 211
has received from them passes to the legitimate
brothers or sisters, if found in kind in the succession :
actions for recovery, if any exist, on the price of such
property alienated, if still due, revert equally to the
legitimate brothers and sisters.
Ail other property passes to the natural brothers
or sisters, or their descendants.
SECTION II.
Of the Sights of the surviving (Conjunct and of the Republic.
767-
When the deceased leaves neither relations of a
degree capable of succeeding, nor natural children,
the property of his succession belongs to his conjunct
not being divorced surviving him.
«
768.
In default of conjunct surviving, the succession is
acquired by the republic.
769.
The conjunct surviving and the commissioners of
public property, who claim right to the succession,
are bound to cause seals to be affixed, and to pre-
serve an inventory to be made in the forms prescribed
for the acceptance of successions under privilege of
inventory.
p2
I
212 Book III.* — Modes of acquiring Property.
770,
They must demand provisional possession in the
court of first instance within the jurisdiction of which
the succession is opened. The court cannot decree
on such petition until after three publications and
notices in the usual forms, and after having heard
the commissioner of government.
771.
The spouse surviving is also bound to make use of
the personal property, or to give sufficient security
to assure its restoration, in case heirs of the deceased
should present themselves within the space of three
years : after such delay, the security is discharged.
772.
The spouse surviving or the commissioners of
public property who shall not have complied with
the formalities respectively prescribed to them, may
be condemned to damages and interest towards the
heirs, if any such appear.
773.
The regulations of articles 769, 770, 771, and 772
are common to natural children summoned for want
of relations.
ntk I.^Qf Successions. 218
CHAPTER V.
Of the Acceptance and Repudiation of Successions.
SECTION I.
Of Acceptance.
,774.
A succession may be accepted simply and abso-
lutely or under privilege of inventory.
«
775.
No one is bound to accept a succession which has
Men to hinii.
776.
Married women are incapable of a valid acceptance
of a succession without the authority of their hus-
bands or of act of law, conformably to the regulations
of cap. 6, under the title " Of Marriage.'*
Successions falling to minors and interdicted per-
sons, cannot be validly accepted but in conformity
to the regulations of the title " 0/ Minoritjf^
Guardianship^ and Emancipation.*'
777.
The effects of acceptance have relation back to the
day of the opening of the succession*
778.
Acceptance may be express or tacit ; it is express,
when the title or quality of heir is assumed in an
authentic or private act j it is tacit when the heir
314 Book III. — Modes of acquiring Property.
makes an act which necessarily supposes his inten-
tion of accepting, and which he would have no right
to do but in his, quality of hein
779.
Acts purely conservatory, of attention and provi-
sional administration, are not acts of entry upon
heirship, if the title or quality of heir have not been
assumed.
780.
Donation, sale, or conveyance of his successional
rights made' by one coheir, either to a stranger, or to
all the other coheirs, or to some one of them, im->
ports on his part acceptance of the succession.
It is the same 1st, with a renunciation though
gratuitous, made by one of the heirs, in favour of one
or more of his coheirs :
2nd, With a renunciation made even to the ad-
vantage of all the coheirs without distinction, when
he receives the price of his renunciation.
781.
When he to whom a succession has fallen is dead
without having repudiated it or without having ac-
cepted it expressly or tacitly, his heirs may accept
or repudiate it in his right
788.
If the heirs cannot agree in accepting or rejecting
the succession, it must be accepted under privil^e
of inventory.
Title 1.-^0/ Successions. 215
783.
One of full age cannot impeach an express or tacit
acceptance made by him of a succession, except in
the case where such acceptance shall have been the
consequence of a fraud practised against him : he
can never disclaim it under pretext of ^hardship, ex-
cepting only in the case where the succession is found
to be absorbed or diminished more than half, by the
discovery of a will unknown at the moment of ac-
ceptance.
SECTION 11.
(fftke Renunciation of Successions.
784.
Renunciation of a succession is not to be presumed :
moreover it cannot be made except at the office of
the court of first instance within the circle where
the succession is opened, or a particular register kept
for this purpose.
785.
The heir who renounces, is considered as never
having been heir.
786.
The share of the party renouncing is added to his
coheirs ; if he be the only one, it devolves upon the
next degree. ,
787.
Parties can never come in as representatives of an
heir who renounces : if the party renouncing is the
216 Book III. — Modes of acquiring Property.
sole heir in his own degree, or if all his coheirs re-
nounce, the children come in in their own right, and
succeed by heads.
788.^
The creditors of a party renouncing to the pre-
judice of their rights, may cause themselves to be
authorised by law to accept the succession in right
of their debtor, in his place and stead.
In such case, the renunciation is annulled merely
in favour of the creditors, and up to the amount only
of their claims ; it is npt so as respects the advantage
of the heir who has renounced.
789.
The power of accepting or repudiating a succes-
sion, is prescribed by the lapse of time required for
the longest prescription respecting claims to real
property.
790.
So long as prescription of the right to accept has
not been acquired against heirs who have renounced,
they have the ability still of accepting the succession,
if it has not been already accepted by other heirs :
without prejudice nevertheless to the rights which
may be acquired by third persons over the property
of the succession, whether by prescription, or by acts
validly made with the curator to the vacant succes*
sion.
791.
A party cannot, even by contract of marriage, re-
nounce the succession to a living person, nor alienate
Title I.^Of Successions. 217
the eventual claims which he may have to such
succession.
792.
The heirs who shall have conveyed away or con-
cealed the goods of a succession are deprived of the
power of renouncing therein: they become heirs
simply and absolutely, notwithstanding their renun-
ciation, without power to claim any share in the ob-
jects conveyed away or concealed.
SECTION III.
Of the PrvoQege of Inventory, of its Effects, and of the Obltgations
of the Benefidartf Heir,
798.
The declaration of an heir that he does not mean
to assume this quality but under the privilege of an
mventory, ought to be made at the office of the civil
court of first instance of the circle in which the suc-
cession is opened : it must be inscribed on the re-
gister destined to receive acts of renunciation.
794.
This declaration has no effect except as it is pre-
ceded or followed by a faithful and exact inventory
of the goods of the succession, in the forms regulated
by the laws upon that proceeding, and within the
intervals which shall be hereafter determined.
818 Book IIL — Modes of acquiring Property.
796.
The heir has three months to form an inventory,
computing from the day on which the succession is
opened.
He has moreover, for the purpose of deliberating
on his acceptance or renunciation, a delay of forty
days, which began to run from the day on which the
three months allowed * for the inventory expire, or
from the day of closing the inventory, if it has been
finished before the three months.
•
1 . 796.
If, however, there are in the succession objects
liable to perish, or expensive in their preservation,
the heir may, in his quality of capable to succeed,
and without being liable to inference of an accept-
ance on his part, cause himself to be authorised by
act of law to proceed to a sale of such effects.
Such sale ought to be made by the public officer,
after notices and publications regulated by laws
relating to that procedure.
797.
During the continuance of the intervals for making
the inventory and for the deliberation, the heir can-
not be compelled to assume this quality, and sentence
cannot be obtained against him ; if he renounce when
those intervals are expired, or before, the expenses
legally incurred by him up to that period are to be
charged upon the succession.
Titk L^^Of Successions. 219
798.
After the expiration of the intervals above men-
tionedy the heir» in case of prosecution directed
against him^ may demand a new delay, which the
court which has possession of the suit may grant or
refuse according to circumstances.
799.
The expenses of prosecution, in the case of the
preceding articlci are at the charge of the succession,
if the heir can prove, either that he had not any know-
ledge of the death, or that the delays were insuf-
ficient, whether by reason of the situation of the
property, or by reason of disputes having arisen ;
if he can bring no proof thereon, the expenses re-
main at his personal charge.
800.
The heir preserves nevertheless, after the expira*
tion of the delays granted by article 795, and also of
those allowed by the judge conformably to article
798, the faculty of still making an inventory and of
constituting himself heir beneficiary, if he has not
otherwise done an act of heirship, or if there
does not exist against him a judgment passed by
force of a matter decided which condemns him in
the quality of simple and absolute heir.
801.
The heir who is found guilty of concealing or who
has omitted knowingly and of bad faith, to compre-
220 Book IIL^^Modes qfacqmring Troperiy.
hend in the inventory some effects of the succession,
is deprived of the privilege of the inventory.
802.
The effect of the privilege of the inventory is to
give to the heir the advantage,
1st. Of not being bound to payment of the debts
of the succession except to the amount of the value
of the goods collected by him, besides the power of
discharging himself from the payment of the debts by
abandoning all the goods of the succession to the
creditors and legatees.
2d. Of not confounding his personal property with
that of the succession, and of preserving towards it
the right, of claiming the payment of his own de-
mand.
803.
The beneficiary heir is charged ta administer the
goods of the succession, and must render an account
of his administration to the creditors and legatees.
He cannot be compelled by his own property
until after he has been in arrear in rendering his ac-
count, and in default of having satisfied this obli-
gation.
After the settling of the account, he can only be
answerable in his own personal property to the
amount of the sums remaining in his hands.
804.
He is only responsible, for serious faults in the
administration with which he is invested.
Title I. — Of Successions. 221
805.
He cannot sell the moveables of the succession
but by the agency of a public officer, by auction,
and after public notices and the accustomed publi-
cations.
If he present them in kind he is only responsible
for the depreciation or deterioration caused by his
own negligence.
806.
He can only sell the immoveable property in the
forms prescribed by the laws on this procedure ; he
is bound to pay over the price thereof to the mort-
gage creditors who make themselves known.
807.
He is bound, if the creditors or other persons in-
terested require it, to give good and sufficient se-
curity for the value of the moveables comprised in
the inventory, and for ^he portion of the price of the
immoveable property not paid over to mortgage
creditors.
In failure of this security to be furnished by him,
the moveable property is sold, and the price is de-
posited, as well as the unappropriated portion of the
«
price of the immoveable property, to be employed
in the acquittance of the charges on the succession.
808.
If there are opposing creditors, the beneficiary
heir can only pay in the order and in the manner di-
rected by the judge.
£SS ^ Book IIL'^Modes qf acquiring Property.
If there are not opposing creditors, he pays the
creditors and the legatees as soon as they present
themselves.
809.
Creditors not opposing, who do not appear until
after the settling of the account and the payment of
the balance, have no redress to exercise except
against the legatees.
In both cases such redress is prescribed by the
lapse of three years, to be computed from the day
of the settling of the accompt and from the payment
of the residue.
810.
The expenses of the seals, if any have been affixed,
of the inventory and of the account, are at the
charge of the succession.
SECTION IV.
Of vacant Successions,
811.
When after the expiration of the delays for making
the inventory and for deliberating, no person appears
who claims a succession, there is no heir known, or
the known heirs have renounced therein, such suc-
cession is taken to be vacant.
^ 818.
The court of first instance within the circle in
Title L—Of Succesmns. SS»
which it is opened names a curator on the petition
of the persons interested, or on the requisition of the
commissioner of government.
818.
The curator in a vacant succession is bound, be-
fore every thing, to certify, the state thereof by an
inventory: he exercises and prosecutes the rights
belonging to it : he answers demands formed against
it : he administers on condition of causing the mo-
ney arising from the succession, as well as that pro-
duced by the sale of the moveables or immoveables,
to be paid into the hands of the receiver of national
revenues, for the preservation of their rights, and on
condition of rendering account to whomsoever it
shaU belong.
814.
The regulations of section 8 of the present chap-
ter, on the forms of the inventory, on the mode of
administration, and on the account to be rendered
on the part of the heir beneficiary, are furthermore
common to the curators of vacant successions.
224 Book III.— Modes qf acquiring Property.
CHAPTER VL
Of Division and Restitution.
SECTION I.
Of the Action for Dwiikm and of its Form.
815.
No one can be compelled to remain without divi-
Bion, and distribution may be always sued for, not-
withstanding prohibitions and conventions to the
contrary.
The distribution may nevertheless be suspended
by agreement during a limited time ; such agree-
ment cannot be made obligatory beyond five years ;
but it may be renewed.
816.
The distribution may be demanded even though
one of the coheirs shall have enjoyed separately a
part of the goods of the succession, if there have not
been an act of distribution, or sufficient possession to
acquire a prescriptive right.
817.
The action for distribution^with respect to coheirs,
minors, or interdicted persons, may be exercised by
their guardians, specially authorised by a fainily-t
council.
Title L--Of Successions; 225
With respect to absent coheirs, the action belongs
to the relations put in possession.
818.
The husband may, without the concurrence of his
wife, claim a distribution of objects moveable or im-
moveable fallen to her and which come into com-
munity : with respect to objects which do not come
into community, the husband cannot claim the dis-
tribution thereof without the concurrence of his wife ;
he can only demand a provisional distribution in case
he has a right to the enjoyment of her property.
The co-heirs of the wife cannot claim final distri-
bution without suing the husband and his wife.
819.
If all the heirs are present and of age, the affixing
of the seals on the effects of the succession is not
necessary, and the distribution may be made in the
form and by such act as the parties interested judge
convenient
If all the heirs are not present, if there are among
them minors or interdicted persons, the seal must be
affixed with the least possible delay, whether at the
request of the heirs, or on the prosecution of the
commissary of government in the court of first in-
stance, or officially by the justice of the peace within
the circle in which the succession is opened.
820.
Creditors may also require the affixing of seals, by
226 Book IIL^^Modes ofacqtdring Property •
virtue of an executory title or of a permission from
the judge.
821.
When the seal has been affixed, all creditors may
make opposition thereto, although they have neither
executory title nor permission from the judge.
The formalities for the removal of the seals and
the formation of the inventory are regulated by the
laws on the procedure.
822.
The action for distribution and the disputes which
arise in the course of the proceedings, are submitted
to the court of the place where the succession is
opened.
It is before this court that auctions are held, and
that petitions ought to be brought relative to the
warranty of lots between copartners, as well as those
for rescinding of the distribution.
828.
If one of the coheirs refuse to consent to the dis-
tribution, or if disputes arise either respecting the
mode of proceeding therein, or on the manner of
completing it, the court pronounces as in a summary
matter, or commissions, if there be ground, one of
the judges for the proceedings in the distribution, on
whose report it decides the dispute.
824.
The estimate of the immoveable property is made
Titie L^-^Of Successions. 227
by competent persons chosen by the parties inter-
ested, or on their refusal nominated officially.
The statement of these persons must present the
basis of the estimate : it must show whether the thing
estimated can be conveniently divided ; in what man*
ner j in short to fix, in base of division, each of the
parts which may be formed of it and their value.
825.
The valuation of the moveables, if there have not
been an appraisement made in a regular inventory,
ought to be made by peojple conversant with these
afiaurs, at a fair price and without increase.
826.
Each of the coheirs may demand his own share in
kind of the moveables and immoveables of the suc-
cession ; nevertheless, if there are seising or opposing
creditors, or if the majority of the coheirs deem a
sale necessary for the discharge of the debts and en-
cumbrances on the succession, the moveables must
be scdd publicly in the ordinary form.
827.
If the immoveables cannot be commodiously
divided, a sale by auction must be proceeded in
before the court.
Nevertheless the parties, if all of age, may consent
that the auction should be made before a notary, on
the choice of whom they can agree.
a2
228 Book III. — Modes of acquitit^ Property.
828.
After the moveables and immoveables have been
valued and sold, the judge appointed sends the par-
ties (if there be ground for doing so) before a notary
respecting whom thej^ can agree, or one officially
nominated if the parties cannot agree upon thie
choice.
They proceed before this officer to the accounts
ivhich the copartners may owe, to the formation of
the general o^ass, to the composition of the lots^ and
to the supplies to be made to each of the copartners.
829.
Every coheir makes restitution of the estate
according to rules which shall be hereafter esta-
blished, of gifts, he may have received, and of siims-
for which he is debtor.
880.
If the restitution is not made in kind^ the coheirs
to whom it is due may deduct a correspondent por-
tion from the mass of the succession.
The deductions are made as far as possible, in
objects of the same nature, quality, and goodness, as
the objects not restored in kind.
831.
After these deductions, recourse is had on what re-
mains in the mass, to the formation of so many equal
lots as there are coheirs or stocks in coparcenary.
Titk I.-^Of Succesmm. 229
In the formation and arrangencients of the lots,
parties must avoid. as much as possible disjointing
estates and dividing works s and it is expedient, if it
can be, to dispose in each lot the same quantity of
moveables and immoveables, of rights or credits of
the same nature and value.
838.
The inequality of the lots in kind is balanced by a
xetum either in rent or in money.
834.
The lots are formed by one of the coheirs, if they
can agree between themselves on a choice, and if the
party elected accepts the commission ; in the oppo-
site case, the lots are made by a competent person
appointed by the judge-commissary.
They are afterwards drawn at hazard*
885.
Before proceeding to draw the lots, each copar-
cener is admitted to offer his objections against their
formation.
836.
The rules established for the division of the masses
to be distributed are equally observed in the subdi-
vision to be made between the coparcenary stocks.
• • ,
837.
If in the operations sent before a notary disputes
should arise, the notary s^iall draw ujp a statement of
280 Book IIL — Modes qf acquiring Property*
the difficulties and of the respective allegations of
the parties, shall send them before the commissary
nominated for the distribution; and, further, the
forms shall be pursued which are prescribed by the
laws on that precedure.
888.
If all the coheirs are not present, or if there are
amongst them interdicted persons, or minors although
emancipated, the distribution must be made by act
of law, conformably to the rules prescribed by article
819> and those following up to and including the
preceding one. If there are many minors who have
opposing interests in the distribution, a special and
particular guardian must be appointed for each»
889.
If there be ground for an auction, in the case of
the preceding article, it cannot be made except by
act of law with the formalities prescribed for the
alienation of the property of minors. Strangers are
always admitted thereto.
840.
Distributions made conformably to the rules above
prescribed, whether by guardians with the authority
of a family-council, or by minors emancipated,
assisted by their curators, or in the name of absentees
or persons not present, are final : they are only pro-
visional, if the rules prescribed have not been ob-
served.
Title L— Of Successions. 881
841.
Every person^ even a relation of the deceased, not
being capable of succeeding him, and to whom a
coheir shall have ceded his claim upon the succession,
may be excluded from the division, either by all the
coheirs, or by one only, on reimbursing him the
price of such cession. .
842.
After the distribution, delivery must be made to
each of the coparceners, of the particular titles to
the objects which may have devolved to him.
The titles to a property divided remain with him .
who has the greatest share, on condition of aiding
therewith such of the coparceners as shall be inter-
ested therein, when it shall be required of him.
Titles common to a whole inheritance are delivered
to him whom all the heirs have chosen to be the de-
positary thereof, on condition of aiding therewith
the coparceners, on every requisition. If there be a
difficulty in the choice, it is regulated by the judge.
SECTION II.
Of Restitutions,
848.
Every heir, even beneficiary, coming to a succes-
sion, must restore to his coheirs, all he has received
from the deceased by donation during life directly or
indirectly : he can not retain such gift nor claim a
legacy left him by the deceased, unless such gifts
232 Book III. — Modes of acquiring Property.
and legacies have been given him expressly in addi-
tion and not subject to partition, or with a dispensa-
tion of restitution.
844.
In the case even where gifts and legacies shall
have been made in addition and with dispensation of
restitution, the heir coming to distribution cannot
retain them except to the amount of the disposable
proportion : the excess is subject to restitution.
845.
The heir who renounces a succession, may never*
theless retain a donation made during life, or claim
a legacy given him, to the amount of his disposable
proportion.
846.
A donee who was not heir presumptive at the
time of the donation, but who has become capable of
succeeding on the day of opening the succession,
must equally make restitution, unless the donor have
dispensed therewith.
847.
Donations and legacies given to the son of him
who is found to be successor at the period of open-
ing the succession, are always taken to have been
made with dispensation of restitution.
The father coming to the succession of the donof
is not bound to make restitution.
Title L — Of Successions. 2SS
848.
In like manner, the son coming in his OMm right
to the succession of the donor, is not bound to re-
store a donation made to his father, even though he
shall have accepted the succession to the latter : but
if the son only comes by representation, he must re-
store a donation made to his father, even in the case
where he shall have repudiated the succession.
849.
Donations and legacies made to the husband or
wife of a party succeeding, are deemed to have been
made with dispensation of restitution.
If the donations and legacies are made conjointly
to the two married parties of whom one only is ca-
pable of succeeding, the other restores a moiety
thereof; if donations are made to the married party
capable of succeeding, restitution must be made of
the whole.
850.
Restitution is only made to the succession of the
donor.
851.
Restitution is due from him who has been em-
ployed for the establishment of one of the co-heirs,
or for the payment of his debts.
852.
The expenses of nourishment, of maintenance, of
234 Book III. — Modes 0/ acquiring Property.
education, of apprenticeship, the ordinary expenses
of equipment, those of marriage and customary pre*
sents, must not be restored.
853.
It is the same with respect to profits which the
heir may have derived from contracts made with the
deceased, if such contracts did not present any in-
direct advantage when they were made.
854.
In like manner restitution is not due in re-
spect of piartnerships formed without fraud between
the deceased and one of his heirs, when the con-
ditions thereof have been regulated by an authen-
tic act.
855.
Immoveable property which has perished by acci-
dent and without the fault of the donee is not
subject to restitution.
856.
The fruits and interests of things subject to resti-
tution are only due computing from the day on
which the succession is opened.
857.
The restitution is due only from one co-heir to
another : it is not due to legatees nor to the cre-
ditors of the succession.
Title L—Of Successions. 235
858.
The restitution is made in kind or by taking less.
859.
It may be demanded in kind, in the case of im-
moveables, as often as the immoveable given has not
been alienated by the donor, and there are not in
the succession immoveables of the same nature, va-
lue, and goodness, of which may be formed lots
nearly equal for the other co-heirs.
860.
The restitution only takes place by taking less
when the donee has alienated the immoveable before
the opening of the succession j it is due to the value
of the immoveable at the date of the opening.
861.
In all cases reimbursements ought to be made to
the donee of the expenses at which the object has
been improved, regard being had to the augmented
value as found at the time of distribution.
862.
Reimbursement should be made also to the donee
of expenses necessarily incurred in the preservation
of the object, although they have not improved
the bulk.
868.
The donee on his part must give account of the
injuries and deteriorations which have diminished the
fise Book III. — Modes of acquiring Property.
value of the immoveable, by his own act or through
his fault and negligence.
864.
In the case where the immoveable has been alien-
ated by the donee, the improvements or injuries
caused by the purchaser must be charged conform-
ably to the three preceding articles.
865.
When the restitution is made in kind, the property
is reunited to the stock of the succession^ free and
quit of all charges created by the donee ; but the
mortgage-creditors may intervene in the distribution
for the purpose of preventing a restitution being
made in fraud of their claims.
866.
When the donation of an immoveable made with
«
dispensation of restitution to one capable of succeed-
ing exceeds his disposeable portion, restitution of the
excess is made in kind, if the retrenchment of such
excess can operate advantageously.
In the contrary case, if the excess is above one
moiety of the value of the immoveable, the donee
must restore it in entirety, saving a deduction from
the stock to the amount of his disposeable portion ;
if such portion exceed half the value of the im-
moveable, the donee may retain the immoveable in
entirety, on condition of taking less and of recom-
pensing the co-heirs in money or otherwise.
Title I.—Of Successions. 237
867.
The co-heir who makes restitution in kind of an
immoveable may retain the possession thereof until
he has been reimbursed the sums due to him for ex-
penses or improvements.
868.
The restitution of moveables is only made by
taking less.
It is regulated on the basis of the value of the
moveables at the time of the donation according to
the estimatory statement annexed to the act ; and in
defect of such statement, according to a valuation
by competent persons, at a fair price and without
increase.
869.
The restitution of money given is made by taking
less in the money of the succession.
In case of deficiency, the donee may free himself
from restitution of the money by abandoning to
the due amount, the moveables, or in default of
moveables, the immoveables of the succession.
SECTION TIL
Of Payment of Debts.
870.
The co-heirs contribute among them to the pay-
ment of the debts and charges on the succession
each in the proportion to what he takes therein.
8S8 Book IIL-^Modes qf acquiring Property.
871.
The legatee by general title contributes with the
heirs proportionably to his emolument ; but the par-
ticular heir is not bound by debts and charges,
sanng however a mortgage on the immoveable be-
queathed.
872.
When some of the immoveables of a succession
are encumbered with rents by a special mortgage,
each of the co-heirs may require that the rents
should be redeemed, and the immoveables rendered
free, before they proceed to the formation of lots.
If the co-heirs make distribution of the succession in
the state in which they find it, the immoveable en-
cumbered ought to be estimated at the same rate as
the other immoveables y a deduction of the capital
of the rent is made from the total valuation ; the heir
within whose lot such immoveable falls alone remains
charged with the encumbrance of the rent, and he
must indemnify his co-heirs against it.
878.
The heirs are bound by the debts and charges cm
the succession, personally for their part and indivi-
dual portions, and conditionally for the whole; saving
the remedy either against their co-heirs, or against
the general legatees, in proportion to the part in
which they are bound to contribute thereto.
«
874.
The particular legatee who has discharged the
Title L— Of Successions. 289
debt with which the immoveable bequeathed was
encumbered, enters by substitution into the rights of
the creditor against the heirs and successors by ge-
neral title.
875.
The co-heir or successor by general title, who has
paid, in consequence of the mortgage, more than his
share of the common debt, has no resource against
the other co-heirs or successors by general title,
except for such part as each of them ought person-
ally to sustain, even in the case where the co-heir
having paid the debt shall have caused himself to be
substituted into the rights of the creditors ; without
prejudice nevertheless to the rights of a co-heir,
^o, by the effect of the privilege of inventory, shall
have preserved the powerof claiming payment of his
personal demand, like every other creditor.
876.
In case of the insolvency of one of the co-heirs or
successors by general title, his share in the mortgage
debt is assessed upon all the others, in their re-
spective proportions.
877.
Executory demands against the deceased are in
like manner executory against the heir personally ;
but the creditors nevertheless shall not be at liberty to
pursue the execution thereof until eight days after
the notification of such demands in person or at the
domicile of the heir.
240 Boole III. — Modes of acquiring Property.
878.
They may demand, in all cases, and against every
creditor, the separation of the patrimony of the de^
ceased from that of the heir.
879.
This right however can be no longer exercised,
when there is a transfer in the claim against the de-
ceased, by the acceptance of the heir as debtor.
880.
Prescription takes place, with reference to move-
ables, by the lapse of three years.
With regard to immoveables, an action may be
maintained as long as they are in the hands of the
heir.
881.
The creditors of the heir are not permitted to de-
mand a separation of the patrimonies against the
creditors of the succession.
882.
The creditors of one coparcener, in order to pre-
vent the making of distribution in fraud of their
rights, may oppose its being done out of their pre-
sence; they have a right of interposing therein at
their own charge j but they cannot impugn a distri-
bution completed, provided however it has not been
proceeded in without them and in prejudice of an
opposition formed by them.
Titk I.— Of Successions. 241
SECTION IV*
Of the Effhcis of DUiribution and of the Warranty of the Lois.
883.
Every coheir is deemed to have succeeded alone
and immediately to all the effects comprised in his
loty or fallen to him by auction, and never to have
had any property in the other effects of the succes-
sion.
884.
The coheirs are respectively sureties for each
other, against those molestations and evictions only
which proceed from a cause anterior to the distri-
bution.
The guarantee does not take effect if the species of
eviction suffered be excepted by a particular and
express clause in the act of distribution ; it ceases if
it is by his own fault that the coheir suffers eviction*
885.
Each of the coheirs is personally bounds in pro-
portion to his hereditary share, to indemnify his
coheir against the loss which his eviction has caused
him.
If one of the coheirs is found to be insolvent, the
portion in which he is bound must be equally as-
sessed upon the party indemnified and all the solvent
coheirs.
886.
The guarantee of the solvency of one who owes a
R
248 Book IlL^^Modes of acquiring Property.
rent cannot be made use of beyond the five years
succeeding the distribution.
There is no ground for the warranty on account of
the insolvency of a debtor where it has occurred
subsequently to the distribution completed.
SECTION V,
Of Annulment of Dutributiom.
887*
Distributions maybe rescinded for cause of violence
or fraud.
There may also be ground for annulment where
one of the coheirs establishes, to his own prejudice
a loss of more than one fourth. The simple omission
of an object in the succession does not give room&r
an action for annulment but merely for a supplement
to the act of distribution*
888.
The action for annulment is admitted against every
act which has for its object the cessation of the co-
parcenary of the coheirs, although it be ratified by^e,
by exchange, by composition, or in any other manner.
But after the distribution, or the act which sup-
* plies its place, the action for rescision is no longer
.admissible against the agreement founded ufx>n the
real difficulties presented by the first act, even though
there should not have been process commenced upon
.this subject.
, . Title I.r-Of SuicesMms. 248
889.
The action is not admitted against a sale of a sue-
cessional right made without fraud to one of the co-
beirsi at his oiim ri^ add peril, by his other coheirs
or by one of them.
890.
In order to judge if damage have been done, a
valuation is made of the objects according to their
value at the period of the distribution.
891.
The defendant on a petition for annulment may
arrest the progress thereof ^nd prevent a new distri*
bution, by tendering and furnishing to the plaintiff
the supplement of his hereditary portion, either in
aioney» or in kind.
892.
The coheir who has alienated his lot in whole or in
part, is no longer admissible to sustain an action for
annulment on the ground of fraud or violence^ if the
alienation which he has made is subsequent to the
discovery o£ the fraud, or to the cessation of the vio«
lence.
r2
S44 Book III.^-^Modes qfacqmrihg Praperkf.
TITLE 11.
OF DONATIONS DURINO UFB» AND OF WILU.
Decreed the 3d of May, 1 803. Promulgated the 3d of the mme
Monik
CHAPTER I-
General Regulations.
89S.
A man shall not be allowed to dispose of his pro-
perty by gratuitous title, except by donation during
life or by will» in the form hereafter established.
894.
A donation during life is an act by which the donor
deprives himself actually and irrevocably of the thing
given, in favour of the donee who accepts it.
895.
A will is an act by which the testator disposes, for
the time when he shall no longer exist, of tlie whole
or of part of his property, and which he is at liberty
to revoke.
896.
Entails are ptohibited«
Every diq[K>sition'by which the donee, the heir ap-
pointed or the legatee, shall be charged to preserve
and render to a third perscm, shall be null, even with
TUk IL^DwatUm and WUU. M5
regard to the donee» the heir appointed and the
legatee.
897.
Excepted from the preceding article are those
dispositions permitted to fathers and mothers, to
brothers and sisters, in the sixth chapter of the pre-
sent title.
898.
The disposition by which a third person shall be
called to receive the donation, the inheritance, or
legacy, in the case where the donee, the heir ap-
pointed or the legatee, will not receive it, shall not
be regarded as an entail^ and shall be valid.
899.
It shall be the same with a disposition during life
or by will, by which the usufruct shalKbe given to
ime and the naked property to another.
900.
In every disposition during life or by will, impos*
^le conditions, such as shall be contrary to the laws
add to morals, shall be reputed not written.
»
CHAPTER II.
Of the Capability qf^ disposing or qf receiving by
Donation during Life or by TVill.
901.
^ In order to make a donation during life or by will,
it is necessary to be of sane mind.
*. *
246 Book IIL^^Atode^ (ff acgukipg^ PtV^^y*
All persons may dispose or receivet either by dot
nation during life, or by will, excepting such as are
declared incapable of doing so by the law.
9oa.
A minor under the age of sixteen years ^ capable
of disposing -in no way» paving that which is ordained
in cap. 9 of the present title.
9M.
. A minor who has reached the age of sixteen years
can make disposition by will only» and to the amouot
of not more than half the property of which the law
permits an adult to dispose.
905. >
A married woman cannot make donation during
life without the assistance or the special consent of
her husband, or without being ^ereto authorised
by the law^ conformably to what is prescribed by
articles 217 ^^^ ^19 under the title '' Of Marriage**\
She shall not need either the consent of her hus-
band, or the authorisation of the law, in order to dis-
pose by will.
906.
In order to be capable of receiving during life, it
suffices to be conceived at the momentof thedonation.
In order to be capable of receiving by will, it suf-
fices to be conceived at the period of the testator's
death.
Title II^^Donatiom and WUk. 347
.Nevertheless thef donation or the will shall not
Iwre their effect except so far as the infant shall be
bom likely to live.
907.
. A minor, although arrived at the age of sixteen;
years, shall not be permitted, even by will, to make
disposition for the benefit of his guardian.
A minor shall not be permitted, on arriving at
msyority, to make disposition either by donation
during life, or by will^ for the benefit of him who
was formerly his guardian, unless the final accompts
of the guardianship have been previously rendered
and settled.
J. Excepted in the two cases above mentioned are
the ancestors of minors, who are or who have been
their guardians.
908.
. Natural children shall not be permitted, by dona-
tion during life or by will, to receive any thing be-
yond what is accorded to them under the title ** Of
909.
Doctors in physic or in surgery, officers of health
and apothecaries, who shall have attended a person
during the malady of which he dies, shall not be al-
lowed to profit by donations during life or by will
which such person shall have made in their favour in
the progress of the disorder.
Excepted 1st. are remunerative dispositions made
by particular documents, regard being had to the
r
ability of the disposer and to the services rendered.
848 Book IIL'^Modes ofacqmring Property.
2nd. General dispositions, in the case of relation-
ship even to the fourth degree inclusive, provided
however the deceased has not heirs in direct line ;
unless he to whose profit the disposition has been
made shall be himself among the number of such
heirs.
The same rules shall be observed with regard to
the minister of religion.
910.
Dispositions during life or by will, for the benefit
of hospitals, of the poor of a commune, or of esta-
blishments of public utility, shall not take effect, ex-
cept so far as they shall be authorised by an ordi-
nance of the government.
911*
Every disposition for the benefit of an incapaci-
tated person shall be null, whether disguised under
the form of a phargeable contract, or made under
the name of substituted persons.
The fathers and mothers, the children and de-
scendants, and the husband or wife of the incapaci-
tated person shall be deemed substituted.
912.
Dispositions shall not be allowed for the benefit of
a foreigner, except in a case where such foreignei
might be allowed to make disposition for the benefit
of a Frenchman.
TUk IL'-DomHotu and fVUb. 949
CHAPTER m.
Of the duposabie Portion ofGoodsy and ^StdueUon,
SECTION I.
• ...
Of the tUsposabie Portion of Goods.
913.
Free gifts» whether by acts during life, or by will,
shall not exceed the half of the property of the dis-
poser, if he leave at his decease but one legitimate
child ; the third part if he leave two children } the
fourth part if he leave three or more of them»
914.
Comprehended in the preceding article, under
the name of children, are descendants in any degree
whatsoever; nevertheless they are only reckoned for
the child whom they represent in the succession of
the disposer.
»
915.
Free gifts, by acts during life or by will, shall not
exceed a moiety of the property, if in default of
children, the deceased leaves one or more ancestors
in both the paternal and maternal line ; and three
fourths if he leave ancestors only in one line.
* Tlie property thus. preserved for the benefit. of
ancestors shall be received by them in the order in
which the law calls them to succeed; th.ey shall
f M Book III.^^Modt9 of acqwring Property.
alone enjoy the right to this reservation, in all cases
in which a distribution in competition with the col-
laterals shall not have given them their disposable
proportion of the goods at which it is fixed.
916.
^^ In default of ancestors and descendants, free gifts
by acts during life or by will may exhaust the whole
of the property.
917.
If the disposition by act during life or by will is
of an usufnfict or life-annuity of which the : value
exceeds the disposable proportion^ the heirs foe
whose benefit the law makes a reservation, shall have
the option either of executing such disposition, or of
abandoning the property of the disposable propor-
tion*
• • • *
918., .
The value in full property of goods alienated,
either on condition of a life*annuity, or by sinking
the money, or with reservation of usufruct, to one of
tboae capable of succeeding in the direct fine, shiall
be deducted from the disposable proportion ; and
the excess, if there be any, shall be carried to the
mass. Such deduction and such carrying to aoeotaot
cannot .be demanded by such * of the other persons
capable of silicce^eding in direct line as shall have
consented to those alienations nor in any case by
fj)o$e capable of succeeding in the collateraL line^: ^
TUk IL^DanaHcns an4 WHh. ^til
919.
The disposable proportion may be given in whqle
or in part, either by act during life, or by will, to
children or others, successors of the donor, without
being subject to restitution by the donee or legatee^
Qoming to the succession, provided the disposition
have been made expressly by gratuitous title, and
not subject to distribution.
The declaration that the gift or legacy is by gra-
tuitous title, or not subject to distribution, may be
made, either by the act which shall contain the dis-
position, or subsequently in the forni of dispositions
during life, or by will.
SECTION n.
Ofttt ReductiM ^Donatiotu trnd Legacies,
920.
Dispositions, either during life, or by reason of
death, which shall exceed the disposable propor-
tion, shall be reducible to such proportion at the'
opening of the succession.
- • r . • . '
921.
The reductions of dispositions during life shaH not
be demanded except by those for whose profit the
law makes reservation, by their heirs or assigns; the
donees, legatees, and creditors of the deceased sliall
not be allowed to demand such reduction nor to pro-
fit thereby.
i
252 Book IIL^^Modcs qf acquiring Prapertjf.
982.
The reduction is settled by forming one mass of
all the property existing at the decease of the donor
or testator. By a fiction such property is added
thereto as he shall have disposed of by donations
during life, according to their condition at the period
of such donations, and their value at the time of the
donor's death. After having deducted the debts, a
calculation is made upon the whole property, of what
proportion, regard being had to the quality of the
heirs whom he leaves, he was empowered to dispose.
92S.
It shall never be allowed to reduce donations
during life until after having exhausted the value of
all the property comprised in the testamentary dis-
positions; and when there shall be room for such
reduction, it shall be made by commencing with the
last donation, and so returning in their order to the
more distant ones.
924.
If the donation during life to be reduced has been
made to one of the successors, he may retain, out of
the property bestowed, the value of the portion
which belongs to him as heir, in goods not dispose-
able if they are of the same nature.
925.
When the value of the donations during life shall
exceed or equal the disposable proportion, all the
testamentary dispositions shall be lapsed.
TUk IL— Donations and Witts. 258
926*
When the testamentary dispositions shall exceed
either the disposable proportion, or the portion of
such proportion which shall remain after having
deducted the value of the donations during life, the
reduction shall be made rateably, without any di-
stinction between general and particular legacies.
927.
Nevertheless in all cases where the testator shall
have expressly declared his intention to be that such
legacy should be acquitted in preference to others,
such preference shall take place; and the legacy
which shall be the object thereof shall not be re*
duced except inasmuch as the value of the others
shall fail to complete the legal reservation.
928.
The donee shall restore the fruits of that which
shall exceed the disposable proportion, computing
from the day of the donor's decease, if the demand
for reduction has been made within the year ; if nott
from the day of such demand.
929.
The immoveables recovered by the effect of the
reduction shall be unencumbered by the debts or
mortgages of the donee.
9S0.
The action for reduction or reclaim may be main-
tained by the heirs against third persons detaining
SM Book IU.^Mode% tfkcfumng Broperty.
immoveables forming part of donations and alien-
ated by the donees, in the same manner and in the
saipe order as against the donees themselves, seizure
being previously made of their property. This
action ought to be maintained according to the
order of the dates of the alienators, beginning with
the most recent.
CHAPTER IV.
Of Donations during Jjtf^*
SECTION L
*' > Of the Form ofUmmAoM ixaing Itfe.
981.
All acts importing donation during life shall be
past before notaries, in the ordinary form of con-
tracts ; and a minute thereof shall be left, on pain of
nullity.
9SS.
A donation during life shall not bind the donor,
or produce any effect, except from the day on which
it shall have been accepted in express terms.
The acceptance may be made, living the donor, by
a^sjibs^u^t and authentic act, of which. a minute
shall remain ; but then the donation shall not have
' effect with regard to the donor, except from the day
on which the act which- shall verify such acceptance
shall have been notified to him.
TiOs IL^Donatkm and Willi. 855
I If the donee be of age, the acceptance must be
made by him or in bis name, by a person holdipg hit
power of attorney importing power to accept the
donation made, or a general power of accepting do-
nations which shall have been or which may here^
after be made.
Such procuration ought to be executed before
notaries ; and a copy thereof must be annexed to
the minute of the donation, or to the minute of ac-
ceptance if made by a separate act.
984.
A married woman shall not be allowed to accept
a donation without the consent of her husband^ or^
in case of her husbatid's refusal, without the autho-
rity of the law, conformably to what is prescribed by
articles 217 and 219f under the title ^^ Of MartialgeJ*
9S5.
A donation made to a minor not emancipated^ or
to an interdicted person, must be accepted by his
guardian, conformably to article 46S, under the title
'* QfMinoriiu$ Guardianships and Emandpatian.^
A minor, emancipated may accept with the assistr
ance of his curator.
Nevertheless the father and mother of tl|e minor
emancipated or not emancipated, or the other anoe^^
tor^ may, though neither the tutors nor carntof • of
the minor accept from him even during the life of
his father and mother.
856 Book III.'^Modes qfacqtming Property.
986.
A person deaf' and dumb, who knows how to
write, shall be capable of accepting by himself or hj
attorney.
If he is unable to write, the acceptance must be
made by a curator nominated for this purpose, ac-
cording to the rules established under the title ^^ Of
Minority^ GuardiansMp^ and Emancipation.**
987.
Donations made for the benefit of hospitals, of the
poor of a commune, or of establishments for public
utility, shall be accepted by the managers of such
communes or establishments, having been thereto
duly authorised.
938.
A donation duly accepted shall be perfect by the
simple consent of the parties ; and the property iq
the objects bestowed shall be transferred to the
donee without necessity of any other conveyance.
989.
When there shall be a donation of property
susceptible of mortgages, the transcription of the
acts containing the donation and acceptance, as well
as the notification of the acceptance which, shall
have taken place by separate act, ought to be made
at the offices for mortgages within the circle In
the property is situated.
Title TI^^Dofmtians and Wills. 857
MO.
Such traiiM»ption sball be odade at the insti^ce
of the husband^ wheB the property shall have be6n
given to his wi!^; and if tiie husband does not
satisfy such formally, the wife may proceed therein
without authority.
When the donation shall be made to minors; to
interdicted persons, or to public establishments, the
transcription shall be maide at the instance of the
guardians, curator^ of manners.
941.
The want of transcription may be objected by all
persons having interest, those however excepted
whose duty it is to cause the transcription to be
made, or their assigns, and the doi^or.
942.
Minors, interdicted persons^ married women, shall
not be reinstated after default of acceptance or
transcription of donations; saving the remedy against
their guardians or husbands, if occasion be, and with-
out power of restitution in the case even where the
said guardians and husbands shall be found insol-
vent
94S.
A donation during life shall taly comprehend the
present property of the donor ; if it comprehend
future property, it shall in that respect be null.
s
258 Book III.— 'Modes qfacqtdring Property.
944.
Every donation during life made under conditions,
the execution of which depends on the single will of
the donor, shall be. null/
945.
It shall be in like manner null, if it have been
made under the condition of discharging other debts
or encumbrances than those which existed at the
period of the donation, or which shall be expressed
either in the act of donation, or in the statement
which ought to be thereto annexed.
946.
In a case where the donor has reserved to himself
the liberty of disposing of an article comprehended
in the donation, or of a fixed sum in the property
bestowed ; if he dies without having disposed there-
of, the said sum or the said article shall belong to
the heirs of the donor, notwithstanding any clauses
or stipulations to the contrary.
947.
The four preceding articles do not apply to do-
nations whereof mention is made in chapters 8
and 9 of the present title.
948.
No act of donation of personal property shall be
valid, except for effects of which an estimatory state-
Title IL^Donations and mils. 259
ment, sighed by the donor and the donee, or those
wlio accept for him, shall have been annexed to the
minute of the donation.
949.
It is permitted to the donor to make reservation
for his own benefit, or to dispose for the benefit of
another, of the enjoyment or usufruct of the move-
able or immoveable property bestowed.
950.
When the donation of moveable effects shall have
been made with reservation of usufruct, the donee
shall be bound at the expiration of the usufruct, to
tajce the effects bestowed whiph shall be found in
kind, in the state in which they are ; and he shall
have an action against the donor or his heirs, by
reason of articles not in existence to the amount of
the value which shall have been given them in the.
estimatory statement.
951.
The donor may stipulate for the right of a return
of the objects bestowed, either in case of the previous
decease of the donee only, or in case of the previous
decease of the donee and of liis descendants.
This right shall not be contracted for except: for
the benefit of the donor only.
952.
The effect of the right of return shall be to rescind.
s 2
S60 Book IlL^Modts of acipArmg Property^
all alienations of property bestowed, and to cause
audi property to revert to the donor» free and quit
of all charges and mortgages, saving nevertheless
the mortgage of dowry and of matrimonial conven-
tions, if the other property of the married party
doqpr does not suffice* and in the case only where
the donation shall ha^ been made to the par^. by
the same contract of marrii^, from which result
such rights and mortgages.
SECTION II.
O/Excepiiont to the Rule an the IrrevocabUity ofDonaHons
during Life,
*
95S.
The donation during life shall not be rfsvdttfd ex-
cept for cause of the non-performance of thtt condi-
tions subject to which it shall have bein made, fbf
cause of ingratitude, and by reason of the unexpected
birth of children.
954.
In the case of revocation for caus€fbf non-perform-
ance of conditions, the property s^all return into
the hands of the donor, free of all charges krid mort-
gages on account of the donee ; and the donor shall
have, against third persons detaining immoveable
property bestowed, all the rights which he would
have had against the donee himself.
.-^
TUk IL^DomtUm end Witts. 861
955.
The donation during life shall Dot be revoked for
ouise pf uigratitudd except in the following cases. :
1^. If the donee have attempted the life of the
donor ;
9d. If he have become guilty of .cruelty» crimes,
or heinous injury towards him ;
Sd« If he refuses him subsistence.
956.
The revocation for non-pierformance of conditions,
or for cause of ingratitude, shall never take place
absolutely.
957.
The petitions for revocation on account of ingrati-
tude ought to be made within the year, to be com-
puted from the date of the crime imputed by the
fkHUH* to the donee, or from the date at which the
crime might have been known to the donor*
Such revooition is not allowed to be petitioned
for by the donor against the heirs of the donee^ nor
by the heirs of the donor against the donee, unless
in the last case the action have been instituted by
the donor, or unless he have died within a year after
the crime.
958.
The revocation for cause of ingratitude shall not
prejudice either alienations made by the donee, or
mortgages and other real charges which he may have
262 Book III. — Modes of acquiring ' Property »
imposed on the object of the donation, provided
' that the whole be anterior to the inscription which
shall have been made of the abstract of the petition
for revocation in the margin of the transcription
prescribed by article 989.
, In case of revocation, the donee shall be con-
demned to restore the value of the objects alienated,
regard being had to the time of the petition and the
fruits, computing from the day of such petition.
959.
Donations in favour of marriage shall not be re-
vocable on account of ingratitude.
960.
All donations during life made by piersons who
had no children or descendants actually living at the
time of the donation, of what value soever such do-
nations may be, and by what title soever they may
have been made, and although they may have been
mutual or remuneratory, except such as shall have
been made in favour of marriage by others than the
ancestors of the married parties, or by the married
parties to each other, shall be absolutely revoked By
the birth of a legitimate child to the donor, even of
a posthumous one, or by the legitimation of a natural
child by subsequent marriage, if it be born subse-
quently to the donation.
961.
Such revocation shall take place although the
lUk II.— Donations and WtUs. 26S
child of the donor were conceived at the time of the
I
donation*
962.
The donation shall be in like manner revoked,
even when the donee shall have entered into pos-
session of the property bestowed, and when it shall
have been ceded by the donor subsequently to the
birth of the child ; provided, nevertheless, that the
donee shall not be bound to restore the profits re-
ceived by him, of what nature soever they may be,
except from the day on which the birth of the child
or his legitimation by subsequent marriage shall have
been notified to him by summons or other act in re-
gular form ; and this, although the petition for re-
entry into the property bestowed shall only have
been formed subsequently to such notification •
968.
*)!*he property comprised in the donation abso-
lutely revoked, shall be restored to the patrimony
of the donor, free of all charges and mortgages on
the part of the donee, without liability to be affected,
even subsidiai*ily, by the restitution oS the dowry of
the wife of such donee, by her previous claims or
other matrimonial covenants ; which shall take place
even though the donation shall have been made in
favour of the marriage of the donee and inserted in
the contract, and though the donee shall be bound
by way of security, by the donor, to the execution
of the contract of marriage.
262 Book III. — Modes of acquiring Property.
imposed on the object of the donation, provided
' that the whole be anterior to the inscription which
shall have been made of the abstract of the petition
for revocation in the margin of the transcription
prescribed by article 989.
, In case of revocation, the donee shall be con-
demned to restore the value of the objects alienated,
regard being had to the time of the petition and the
fruits, computing from the day of such petition.
959.
Donations in favour of marriage shall not be re-
vocable on account of ingratitude.
960.
All donations during life made by persons who
had no children or descendants actually living at the
time of the donation, of what value soever such do^
nations may be, and by what title soever they may
have been made, and although they may have been
mutual or remuneratory, except such as shall have
been made in favour of marriage by others than the
ancestors of the married parties, or by the married
parties to each other, shall be absolutely revoked By
the birth of a legitimate child to the donor, even o€
a posthumous one, or by the legitimation of a natural
child by subsequent marriage, if it be born subse-
quently to the donation.
961.
Such revocation shall take place although the
Titk II.— Donations and WiUs, 263
child of the donor were conceived at the time of the
t
donation*
962.
The donation shall be in like manner revoked,
even when the donee shall have entered into pos-
session of the property bestowed, and when it shall
have been ceded by the donor subsequently to the
birth of the child ; provided, nevertheless, that the
donee shall not be bound to restore the profits re-
ceived by him, of what nature soever they may be,
except from the day on which the birth of the child
or his legitimation by subsequent marriage shall have
been notified to him by summons or other act in re-
gular form ; and this, although the petition for re-
entry into the property bestowed shall only have
been formed subsequently to such notification.
968.
*)]*he property comprised in the donation abso-
lutely revoked, shall be restored to the patrimony
of the donor, free of all charges and mortgages on
the part of the donee, without liability to be affected,
even subsidiarily, by the restitution of the dowry of
the wife of such donee, by her previous claims or
other matrimonial covenants ; which shall take place
even though the donation shall have been made in
favour of the marriage of the donee and inserted in
the contract, and though the donee shall be bound
by way of security, by the donor, to the execution
of the contract of marriage.
164 Book UI^—MiMUii qf acquiring Property.
The donations thus revoked shall not be r6viye4
or take effect anew either by the death of the child
of the donor or by any cQOfirmatory act ; and if the
donor |s desirous of conferriog ihe ssmh^ property on
the same donee, either before or after the ^^th of
the child by vtho^ birth th^ doiuitian vr^s reyaked,
he can only accomplUh it by ^ new disposition.
965.
Every clause or covenant by which thq donor shall
have renownced his right to revoke a dpn^ioa on
accouilt of the birth of a child, shall be regarded aa
null, and shall be incs9>able of producing any effect.
966.
The doneet his heirs or assigns, or others detiun*
ing things bestowed, shall not be allowed to object
prescription in order to make valid a dcHiation re-
voked by the birth of a child, until after a possession
of thirty years» which shall only begin to run from
the day of the birth of the last child of the dooor,
though posthumous ; and this, without prcgudice to
interruptions, such i|s pf clfum<
ntk IL-rrDonaMfm and WiUu 96S
CHAPTER V.
Of Testamentary Dispositions.
SEC?riON L
0/ general Rtdee on the Farm qf Wills.
967.
Gvpry person 9hall be at liberty to dispose by wilU
ttther under the tide of appointment of 9a beir» or.
under the title of legacy, or upder any other deno-
mination proper to manifest his will.
968.
Two or more p^sons shall not be permitted ta
make a wiU in the qame act, either for the benefit Qf
a third persqn, or under the title of a reciprocal and
mutual disposition.
A will may be an olpgraphe, or made by public
act pr in the myotic form.
970..
An ologri^hic will shall npt b^ v^id |iq1^s» it b«.
written throughout^ dated and signied by the hand
of the testator : it is nq^ objected to any other
formality.
MS Book III. — Modes of acquiring Property.
971.
The will by public act is that which is received by
two notaries in the presence of two witnesses, or by
one notary in the presence of four witnesses.
972.
If the will is received by two notaries, it is dic-
tated to them by the testator, and it must be written
by one of such notaries, as it is dictated.
If there be only one notary, it must equally be
dictated by the testator, and written by such notary.
In both cases, it must be read over to the testator,
«
in presence of the witnesses.
Express mention of the whole must be made.
978.
This will must be signed by the testator } if he
declare that he knows not how or is undble to sign,
express mention shall be made of his declaration in
the act, as well as of the cause which prevents him
from signing.
974.
The will must also be signed by the witnesses ;
nevertheless in the country it shall suffice that one of
the two witnesses signs, if the will is received by two
notaries, and that two of the four witnesses sign if it
is received by one notary. ^
975.
Neither of the legatees by what title soever they
Title II.— Donations and Wills, 367
are so, nor their relations . nor connexions even to
ihe fourth decree incluaivelyt nor the derks of the
aotattaM bf fvhom the tacta sballJsie. tak^n^ abaii ise
capable of being received as witnesses of the will by
public act.
976.
When the testator shall be desirous of making a
mystic or secret* will, he shall be bound to sign his
dispositions, whether he has written them himself, or
whether he has caused them to be written by an-
other. The paper which shall contain his dispositions,
or the paper which shall 3erve as envelope, ifthere.be
one, shall be closed and sealed. The testator shall
present it thus closed and sealed to the notary and to
six witnesses at the least, or he shall cause it to be
closed and sealed in their presence ; and he shall de«
dare that the contents of such paper are his will,
written and signed by himself, or written by another
and signed by him : the notary shall thereon draw
up the act of superscription, which shall be written
on the paper or oil the sheet which shall serve for en-
velope ; this act shall be signed as well by the testator
as by the notary, together with the witnesses. All
the above shall be done immediately and without di-
version to other acts ; and in case the testator, by an
impediment ^happening, subsequently to the signature
of the will, is rendered unable to sign the act of sUn
perscription, mention shall be made of his declara-
tion on that subject, and it shall not be necessary,
io such case, to augment the number of witnesses.
SfiS Book HI.-^Modes tf acquiring Property.
977.
If the testator knows not how to ^ign^ or if he
were unable to sign when he caused his dispositions
\fi be written, a witness shall be called to the act of
superscription in addition to the number contained
in the preceding article, who shall sign the act with
the other witnesses ; and mention shall be made
theirein of the cause for which such witness was
called.
978.
Those who know not how or who are unable to
read, shall not be allowed to make dispositions in the
form of a mystic will.
979.
In the case where a testator cannot speak but is
able to write, hq may make a mystic will, on condi*
tion that such will shall be written throughout, dated
and s^ned with his own hand, that he shall present
it to the notary and to the witnesses, imd that at the
head of the a^t of superscription, he shall write in
their presence, that die paper which he presents is his
will ; after which the notary shall write the act oi
superscription, in which mention shall be made of the
testators having written these words in presence of
the notary and of the witnesses ; and moreover every
thing observed which \% prescribed in article 976, '
•
980.
The witnesses called to be present at wills must
3l<fe IL—Donalhiu md WUh, M9
be males, of age, republibaAs, and in the enjoyment
of civil rights.
SECTION II.
()f particular Rwtes tomchittg the Form of certain WUU.
981.
The wills of military men and of individuals em-
ployed in the armies may be received in any country
whatsoever, by the commander of a battalion or
squadron, or by any other officer of a superior rank,
in presence of two witnesses, or by two military com-
missaries, or by one of such commissaries in presence
of two witnesses.
982.
They may moreover be received, if the testator be
sick or wounded, by the chief officer of health, as«
sisted by the military commandant charged with the
police of the hospital.
983.
The regulations of the articles above shall not take
place except in favour of those who shall be on a
military expedition, or in quarters, or in garrison out
of the territory of the republic, or prisoners in an
enemy's country ; but those who are in quarters or
in garrison in the interior shall not have the benefit
thereof unless they shall be in a place besieged or in
a citadel or other place of which the gates shall be
closed and the communications cut off by reason of
war.
270 Book III.^^Modes of acquiring Property •
•
9M.
The will made according to the above established
form shall be null six months after the testator shall
have returned into a place in which he shall have
the liberty of employing the ordinary forms.
985.
Wills made in a place with which all communica-
tion shall be intercepted on account of the plague or.
other contagious distemper, may be made before the
justice of the peace, or before one of the municipal
officers of the commune in presence of two witnesses*
986\
These regulations shall take place as well with re-
spect to those who shall be attacked by such dis-
orders, as to those who shall be in the places infected
therewith, although they be not actually sick.
987.
The wills mentioned in the two preceding articles,
shall become null six months after the communica-
tions shall have been re-established in the place
where the testator remains, or six months after he
shall have past into a place where they shall not be
interrupted.
988.
Wills made at sea, in the course of a voyage, may
be received, in manner following.
On board ships and other vessels of the state, by
the officer commanding the vessel, or, in his absence.
Title II.'-Donations and mils. STl
by him who supplies his place in the order of the
service, one or other conjointly with the oflScer of
administration or with him who fulfils these func-
tions :
And on board commercial vessels, by the super-
cargo of the ship or him who performs the functions
thereof, one or other conjointly with the captain, the
master or the commander, or in their absence by
those who replace them.
In all cases such wills must be received in the
presence of two witnesses.
989.
On board ships of the state, the will of the captain
or that of the officer of administration, and on board
cooimercial vessels, that of the captain, of the master
or commander, or that of the supercargo, may be
received by those who follow them in the order of
service, on conforming themselves as to other points
to the regulations of the preceding article.
990.
In all cases, a double original shall be made of the
wills mentioned in the two preceding articles.
991.
If the vessel touch at a foreign port in which
resides a commissary for the commercial relations of
France, they who shall have received the will are
required to deposit one of the originals* closed oi*
sealed, in the hands of such commissary, who shall
372 Book III^^Modes of MqmMg Troperty.
eaiise it to be transmitted to theminis^r of marine;
and the latter shall cause it to be deposited among
the rolls of the justice of the pea^e at the place
where the testator was domiciled.
9Sl2.
On the return of the vessel to France^ whether into
the port of her fitting out, or into a different port
from that of her fitting out» the two originals of thfe
will, alike closed and sealed, or the one which shall
remain, if the other have been deposited during the
course of the voyage in conformity with the prece-
ding article, shall be remitted to the oflSce of the
prefect of maritime inscription ; such prefect shidl
transmit them without delay to the minister of ma^
rine, who shall order the deposit thereof according
to the directions of the preceding article.
998.
Mention shall be made on the roll of the ship, in
the margin, at the name of the testator, of the dis-
posal which shall have been made of the originals of
the will, whether into the hands of a commissary for
commercial relations, or to the office of a prefi^ct of
maritime inscription.
9d^.
The will shall not be regarded as made at s^a,
although it be in the course of a voyage, if at the
time when it was made the ship had touched laAd,
either foreign, or within the French dominion, ivhere
there was a French public officer ; in ^hicll case it
ntk IL-^Dmations and Wilis. 273
shall not be valid except so far as it shall have been
drawn up according to the forms prescribed in
Franc*, or according to those usual in the countries
where it shall have been made.
995.
The regulations above shall be common to passen-
gers merely who shall not form part of the ship's
crew.
996.
A will made at sea, in the form prescribed by ar-
ticle 988, shall only be valid where the testator shall
die at sea, or within three months after he shall have
landed, and in a place where he shall be able to re-
new it in the ordinary forms.
997.
A li^ill made at sea shall not contain any disposi-
tions for the benefit of the officers of the vessel, un-
less they are relations of the testator.
998.
The wills comprehended in the preceding articles
of the present section, shall be signed by the testa-
tors and by those who shall have taken them.
If the testator declare that he cannot sign or
knows not how to sign, mention of his declaration
shall be made, as well as of the cause which prevents
his signing.
In cases where the presence of two witnesses is
requisite, the will shall be signed at least by one of
274 Book III. — Modes of acquiring Property.
them, and mention shall be made of the cause for
which the other shall not have signed.
999.
A Frenchman who shall be in a foreign country,
may make his testamentary dispositions by act under
his private signature, as is prescribed in article 970»
or by authentic act^ with the forms usual in the place
where such acts shall be passed.
1000.
Wills made in a foreign country shall not be al-
lowed to be executed on property situated in France,
until after they have been registered in the office of
the testator's domicile, if he have preserved one,
otherwise at the office of his last known domicile in
France ; and in case the will shall contain disposi-
tions of immoveables which shall be situated there,
it must be moreover registered at the office where
such immoveables are situated, without being charge-
able with a double duty for it.
1001.
The formalities to which different wills are sub-
jected by the regulations of the present and of the
preceding section, must be observed on pain of nul-
lity.
TUIe II.— Donations and WiUs. 275
SECTION III.
0/ Appointments of Heir, and of Legacies in general,
1002.
Testamentary dispositions are either general or
by general title, or by particular title.
£ach of these dispositions, whether it have been
made under the denomination of appointment of
heir, or whether made under the denomination of
legacy, shall produce its effect according to the rules
hereafter established for general legacies, for legacies
by general title, and for particular legacies.
SECTION IV.
Of the general Legacy,
1003.
The general legacy is the testamentary disposition
by which the testator gives to one or more persons
the entirety of the property which he leaves at his
death. '
1004.
When at the decease of the testator there are heirs
to whom one portion of his property is reserved by
the law, such heirs are seised absolutely, by liis
death, of all the property of the succession j anu the
general legatee is bound to demand from them a
transfer of the property comprehended in the will.
T 2
276 Book IIL — Modes of acquiring Property.
1005.
Nevertheles8» in similar casest the general legatee
shall have the enjoyment of the property compre-
hended in the will, computing from the day of the
death, if the demand of transfer were made within
a year from that event ; if otherwise such enjoyment
shall only commence from the day of the demand
legally made, or from the day on which such transfer
shall have been voluntarily consented to.
1006.
When at the decease of the testator there shall be
no heirs to whom a portion of his property shall be
reserved by the law, the general legatee shall be
seised absolutely by the death of the testator, with-
out being bound to demand a transfer.
1007.
Every olographic will shall, before it is put in exe-
cution, be pretented to the president of the court of
first instance of the circle within which the suc-
cession is opened. Such will shall be opened, if it
has been sealed. The president shall draw up a
statement of the presentation^ of the opening, and
of the state of the will, which he shall order to be
deposited in the hands of a notary appointed by him-
self.
If the will is in the mystic form, its presentation^
its opening, its description, and its deposit, shall be
made in the same manner ; but the opening.shall not
be permitted except in the presence of those of the
Titk II.— Donations and Wills. Vll
notaries, and such of the witnesses who signed the
act of superscription, as shall be found on the spot,
or those summoned.
1008.
In the case in article 1006, if the will is ologra-
phic or mystic, the general legatee shall be bound to
procure himself to be put in possession by an ordi*
nance of the president, placed at the bottom of a
request, to which shall be joined the act of deposit.
1009.
The general legatee who shall be in competition
with an heir to whom the law reserves a portion of
the property, shall be bound by debts and charges
on the succession of the testator, personally for his
own share and portion, and conditionally for the
whole ; he shall also be bound to discharge all lega-
cies, saving the case of reduction, as it is explained
in articles 926 and 987.
SECTION V.
<
()f Legacy by general Tkle,
1010.
The legacy by general title is that by which the
testator bequeaths an aliquot part of the property of
which the law allows him to dispose, such as a half,
a third, or all his immoveables, or all his personalty.
^
278 Book III.'— Modes qf acquiring Property.
or a fixed proportion of all his immoveables, or of all
his personalty.
Every other legacy forms only a disposition by
particular title.
1011.
Legatees by general title shall be bound to demand
a transfer to the heirs to whom a proportion of the
property is reserved by the law ; failing such, to ge*
neral legatees, and failing the latter, to the heirs
called in the order established under the title ^' Of
Successions.**
1012.
The legatee by general title shall be bound like
the general legatee, by the debts and charges of the
succession of the testator, personally for his own
sh(ire and portion, and conditionally for the whole.
1018.
When the testator shall only have disposed of one
part of the disposable portion, and shall have done
so by general title, such legatee shall be bound to
discharge the particular legacies by contribution
with the natural heirs.
SECTION VI.
0/ particular Legacies.
1014.
Every legacy absolute and unconditional shaU,
from the day of the testator's decease, confer upon
Title IL^Domtions and Wills. 279
the legatee a right to the thing bequeathed, a right
transmissible to his heirs or assigns.
Nevertheless the particular legatee shall not be
permitted to put himself in possession of the thing
bequeathed, nor to claim the fruits or interests
thereof, except as computing from the day of his
demand of transfer, formed according to the order
established by article 1011, or from the day on which
such transfer shall have been voluntarily granted.
1015.
The interests or fruits of the thing bequeathed
shall accrue for the benefit of the legatee, from the
day of the death, and without his having made a
petition according to law.
1st. When the testator shall have expressly de*
clared his intention, in this respect, in the will ;
2d. When an annuity or a pension shall have been
bequeathed under title of alimony.
1016.
The expenses of the petition for transfer shall be
at the charge of the succession, provided neverthe-
less that no reduction of the legal reserve shall be
permitted to result therefrom.
The fees on registration shall be demandable from
the legatee.
The whole if it have not been otherwise directed
by the will.
Every legacy may be registered separately, al-
though such registration may profit no one but the
legatee or his assigns.
280 Book III. — Modes of acquiring Froftriy.
1017.
The heirs of the testator, or other debtors in a
legacy^ shall be personally bound to discharge it,
each in proportion to the share and portion in which
he shall have been benefited by the succession.
They shall be conditionally bound for the whole
thereof, up to the amount of the value of the im-
moveables of the succession of which they shall be
holders.
1018.
The thing bequeathed shall be transferred with all
necessary appurtenances, and in the state in which
it shall be found on the day of the donor's death.
1019.
When he who has bequeathed the property of an
immoveable, has afterwards augmented it by acqui-
sitions, such acquisitions, though they be contiguous,
shall not be deemed to form part of the legacy with-
out a new disposition.
It shall be otherwise with embellishments, or new
buildings formed on the estate bequeathedf or an
enclosure with which the testator shall have enlarged
the circumference.
1020.
If before or after the will, the thing bequeathed
has been mor^aged for a debt of the succession, or
even for the debt of a third person, or if it is encum-
bered with an usufruct, he who ought to acquit such
legacy is not bound to redeem it, unless he have
Title II.— Donations and Wills. 881
been charged to do so by an express disposition of
the testator.
1021.
Where a testator shall have bequeathed an object
belonging to another, the legacy shall be annulled,
whether the testator were aware or not that it did
not belong to him.
102S.
When the legacy shall be of a thing undetermined,
the heir shall not be compelled to give it of the best
quality, nor shall he be permitted tp offer the worst.
loss.
A legacy made to a creditor shall not be deemed
a compensation for his debt, nor the legacy made to
a domestic a compensation for his wages.
1024.
The legatee by particular title shall not be bound
* •
by the debts of the succession ; saving the reduction
of the legacy as is said above, and saving the mort-
gage deed of creditors.
SECTION VII.
0/ testamentary Executors.
10S5.
The testator shall be at liberty to nominate one or
more testamentary executors.
S82 Book IIL-^Modes qfacqtdriug Property.
10S6.
He may give them seisin of the whole or only of
one part of his personalty j but it shall not be allowed
to continue beyond a year and a day computing from
his death.
If he has not given it them, they shall not be per-
mitted to demand.
1027.
The heir may put an end to such possession, by
offering to place in the hands of the testamentary
executors a sum sufficient for the payment of the
personal legacies, or by guaranteeing such payment.
1028.
He who is incapable of making a bond, cannot be
a testamentary executor.
1029.
A married woman shall not be allowed to accept
testamentary executorship exc^t with her husband's
consent.
If she enjoy separate property, either by the mar-
riage-contract or by judgment, she may accept it
with her husband's consent, or upon his refusal, with
legal authority, conformably to what is prescribed
by articles 217 and 219> under the title ** Of Mar^
riagey
1080.
A minor shall not be allowed to become testa-
Titk IL-^Donatims and Wills. 288
mentary executor even with the authority of his
goardiaD or curaton
•
1081.
TestameDtary executors shall cause seals to be
affixed if there are among the heirs, minors, inter-
dicted persons, or absentees.
They shall cause an inventory of the property of
the succession to be made in the presence of the
heir presumptive ; or having duly summoned him,
: Tb^ shall proceed to a sale of the personalty, on
fiulure of sufficient money to pay the legacies.
They shall use vigilance that the will be executed ;
and they shall be authorised, in case of dispute
respecting its execution, to interfere in order to
sustain its validity.
They must render an account of their manage-
ment at the expiration of a year from the death of
the testator.
1032.
The powers of the testamentary executor shall not
pass to his heirs.
10S8.
If there are several testamentary executors who
have accepted, one only may act in default of the
others ; and they shall be responsible {qt the whole
of the account of the personalty, which was confided
to them, unless the testator have divided their func-
tions, and unless each of them is circumscribed in
that which has been allotted him.
884 Book IIL^^Modes of acquiring Property.
1084.
The expenses incurred by the testamentary exe^-
cutor for the affixing of the seals, for the inventory^
the account and other expenses relative to their
functions, shall be at the charge of the succession.
SECTION VIII.
Of the Revocation and of tie Lapse qf WUU.
10S5.
Wills shall be incapable of being revoked, in whole
or in party except by a later will, or by an act before
notaries, containing a declaration of the change of
intention.
1086. *
Later wills, not revoking in an express manner the
preceding ones, shall annul in the latter such dis-
positions only therein contained as shall be found
inconsistent with the new ones, or which shall be
contrary thereto.
1087.
The revocation made in a latter will shall produce
its complete effect, although the new act remain un-
executed by reason of the incapacity of the heir
appointed or of the legatee, or by reason of their
refusal to accept the succession.
1088.
Every alienation, even that by sale with power of
Tiik IL^DonaHons and Wilis. 885
repurchase or by exchange, which the testator shall
make of the whole or of part of the thing bequeathed,
shall import revocation of the legacy as respects all
which has been alienated, although the posterior
alienation be null, and the object be returned into
the hands of the testator.
1039.
Every testamentary disposition shall lapse if he in
whose favour it has been made does not survive the
testator.
1040.
Every testamentary disposition made under a con«
dition dependent on an uncertain event, and such
tnat within the testator's intention, it must not be
executed except so far as such event shall happen or
not happen, shall be lapsed, if the heir appointed
or the legatee dies before the accomplishment of the
condition.
1041.
The condition which, within the testator's inten*
tion, merely suspends the execution of the disposi-
tion, shall not prevent the heir appointed, or the
legatee, from having a vested right and transmissible
to his heirs.
1042.
The legacy shall lapse, if the thing bequeathed
have totally perished during the life of the testator.
S88 Book IIL^^Modes qf acquiring Property.
The same rule holds, if it have perished subse-
quently to his death, without the act and faidt of the
heir, although the latter have been guilty of delay
in transferring it, provided it would have peridied
equally in the hands of the legatee.
1048.
The testamentary disposition shall lapse, when
the heir i^pointed or the l^atee shall reject it, or
shall be found incapable of receiving it.
1044.
There shall be ground for increase for the benefit
of l^ptees^ in the case where the legacy shall be
made to several conjointly.
The l^^acy shall be taken to be made conjointly
when it shall be so by one single and the same dis-
position, and when the testator shall not have as-
signed the proportion of any of the colegatees m the
thing bequeathed.
1045.
It shall moreover be taken to be made conjointly,
when a thing which is not capable of being divided
without deterioration, shall have been given by the
same act to several persons, although separately.
1046.
The same causes which, according to article 954
and die first two regulations of article 955, shall au*
thorise the petition for revocation of the donation
Title II.—'DonaHottt and WiUs. SS7
during life, shall be admitted as a petition for revo-
cation of testamentary dispositions.
1047.
If such petition be founded on a serious injnry
done to the memory of the testator, it must be instil*
tuted within the year, to be computed from the date
of the crime.
CHAPTER VI.
Of Dispositions permitted in favour of the Grand*
Children of the Donor or Testator, or of the Children
of their Brothers and Sisters.
1048.
The property which fathers and mothers have the
power to dispose of, may be by them conferred in
whole or in part, on one or more of their children^
by acts during life or by will, with the condition of
surrendering such' property to the children bom or
to be bom, in the first degree only, of the said donees.
1049.
In case of death without children, the disposition
which the deceased shall have made by act during
life or testamentary, for the benefit of one or more
of his brothers or sisters, of the whole or part of his
property not reserved by the law in the succession,
shall be valid on condition of restoring such property
to children bom and to be born, in the first degree
only, to the said brothers and sisters donees.
888 Book III.'^Modes qf acquiring Property.
1050.
The dispositions allowed by the two preceding
articles, shall only be valid as far as the condition of
restitution shall be for the benefit of all the children
born and to be born of the party subjected thereto^
without exception or preference of age or sex.
1051.
If in the cases mentioned above, the party sub-
jected to restitution for the benefit of his children,
dies, leaving children in the first degree and descend-
ants of a child previously deceased, such last shall
receive, by representation, the portion of the child
previously deceased.
1052.
If the child, the brother or the sister to whom,
property shall have been given by act during life,
without charge of restitution, accept a new gift; made
by act during life or testamentary, on condition that
the property previously conferred shall be encum-
bered with such charge, it is no longer permitted
them to divide the two dispositions made for their
benefit, or to renounce the second in order to get
possession of the first, even though they should offer
to restore the property comprised in the second dis*
position.
1053.
The claims of parties summoned shall be opened
at the period when, for any cause whatsoever, the
enjoyment of the child of the brother or sister
Title IL'-'Donations and Wills. 289
charged witli restitution, shall cease : the previous
renunciation of the enjoyment for the benefit of the
parties summoned, shall not be permitted to preju-
dice the creditors of the party charged anterior to
the abandonment.
1054.
The wives of tenants for life shall not be allowed
to have, over the property to be restored, subsidiary
redress, in case of insufficiency of unencumbered
property, except for the capital of dowry-money, and
in the case only where the testator has expressly
ordered it.
1055.
He who shall make the dispositions authorised by
the preceding articles, shall be allowed to nominate,
in authentic form, by the same act or by a later one;
a guardian charged with the execution of such dis-
positions ; such guardian shall not be dispensed there-
from except for one of the causes expressed in section
6 of chap. 2, of the title " Of Minority ^ Guardian-
skipj and Emancipation**
1056.
In default of such guardian, one shall be named
at the instance of the party charged, or of his guard-
ian if he be a minor, within the interval of a month,
to be computed from the day of the decease of the
donor or testator, or from the day subsequent to
such death, on which the act containing the dispo-
sition shall have been known.
u
ago Book JII.-^Modes of acquiring Property.
1057.
The party charged, who shall not have satisfied
the precediiig article, shall be deprived of the benefit
of the disposition ; and in such case the right may be
declared open for the benefit of the parties sum^
moned, at the instance either of the summoned if
they are of age, or of their guardian or curator if
they are minors or interdicted persons, or of any
relation of the summoned of age, minors or inter-
dicted persons, or even o&ciMy at the instance of
the commissary of government in the court of first
instance in the place where the succession is opened.
1058,
After the decease of one who shall have made dis-
position with charge of restitution, it shall be pro-
ceeded in the ordinary forms, to the inventory of all
the property and effects which shall compose his suc-
cession, excepting nevertheless the case where one
particular legacy only is to be dealt with. This in*
ventory shall contain a valuation at a fair price of the
moveables and personal effects.
1059.
It shall be done at the request of the pajty
charged with restitution, and within the delay fixed
under the title " Qf Successions,^^ in presence of the
guardian nominated for execution. The expenses
shall be deducted from the property comprehended
in the disposition. '
Title II.— Donations and Wills. 891
1060.
If the inventorj have not been made by the re-
quest of the tenant for life, within the interval above-
mentioned, it shall be proceeded in in the month fol-
lowing, at the instance of the guardian nominated
for the execution, in presence of the tenant for life,
or of his guardian.
1061.
If the two preceding articles have not been satis-
fied, the same inventory shall be proceeded in at the
instance of the persons designated in article 1057» by
calling thereto the tenant for life or his guardian,
and the guardian nominated for the execution.
V
1062.
The tenant for life shall be bound to take pro^
ceedings for a sale, by notices, and to the highest
bidder, of all the moveables and effects comprised in
the dii^sition, with the exception nevertheless of
those of which mention is made in the two follow-
ing articles.
1063. ,
Household goods and other moveable effects which
shall have been comprised in the disposition, with
the express condition of preserving them in kind,
shall be restored in the state in which they shall be
found at the period of restitution.
1064.
Cattle and implements serving for the cultivation
u 2
892 Book III. — Modes of acquiring Property.
of lands, shall be taken to be comprised in donations
of such lands during life or testamentary ; and the
tenant for life shall only be bound to get them ap-
praised and estimated, in order to render an equal
value at the period of restitution.
1065.
The tenant for life shall, within the interval of six
months, computing from the day of closing the in*
ventory, employ the ready money, of such as arises
from the price of the moveables and effects which
shall have been sold, and of that which shall have
been received from debts owing.
Such interval may be prolonged, if there be ground
for it.
0
1066.
The tenant for life shall be in like manner bound
to employ money proceeding from debts owing which
shall be recovered and from payments of rents, and
this within three months at the latest, after he shall
have received such money.
1067.
This employment shall be made in conformity to
what shall have been directed by the author of the
disposition, if he have pointed out the nature of the
effects in which the employment is to be made ; if
not, it can only be in immoveables, or with privilege
over immoveables.
Tifte IL— Donations and Wills. S9S
1068.
The employment directed by the preceding articles
shall be made in presence and at the instance of the
guardian nominated for the execution*
1069.
Dispositions by acts during life or testamentaiy,
on condition of restitution, shall be made public,
either by the party charged or by the guardian no-
minated for the execution ; that is to say, as regards
immoveables, by the transcription of the acts into the
registers of the office of mortgages of the place where
they are situated ; and as regards sums placed out
with priority of claim over immoveables, by inscrip-
tion on the property subject to such priority.
1070.
The default of transcription of the act containing
the disposition, may be objected by creditors and
third persons purchasers, even to minors or inter-
dicted persons ; saving the remedy against the tenant
for life and against the guardian for the execution,
and without minors and interdicted persons being
capable of being reinstated in spite of such farlure
of transcription, even though the tenant for life and
the guardian be found insolvent.
1071.
The failure of transcription cannot be supplied
nor regarded as cured by the knowledge which cre-
ditors or third persons creditors might have had of
294 Book III. — Modes of acquiring Properly.
the disposition by other means than that of tran-
scription.
1072.
Neither donees, legatees, nor even the legitimate
heirs of him who shall have made the disposition,
nor in like manner their donees, legatees or heirs,
shall be allowed, in any case, to object to parties
summoned the want of transcription or inscription.
1078.
The guardian nominated for the execution shall
be personally responsible, unless he has, in every
point, conformed to the rules above established for
verifying the property, for the sale of the personalty,
for the employment of the money, for transcription
and inscription, and in general if he have not used
all necessary diligence in order to the good and faith-
ful acquittal of the condition of restitution.
1074.
If the tenant for life is a minor, he cannot, even in
case of the insolvency of his guardian, be reinstated
against failure in complying with the rules prescribed
to him by the articles of the present chapter.
CHAPTER VII.
Of Distributions rnade by the Father^ Mother^ or
other Ancestors^ among their Descendants.
1075.
The father and mother and other ancestors may
Tiik IL^DdmHwu and WUU. Sfti
make division and distribution of their property
among their children and descendants.
1076.
These distributions are allowed to be made bv acts
during life or testamentary, with the formalities, con-
ditions, and rules prescribed for donations during life
and wills.
Distributions made by acts during life can only
have present property for their object.
1077.
If all the property which the ancestor shall leave
on the day of bis death has not been comprised in
the distribution, that portion of property which has
not been comprehended therein shall be distributed
conformably to law.
1078.
If the distribution has not been made aqiong all
the children who shall exist at the time of the death
and the descendants of those who have previously
died, the distribution shall be entirely null. A new one
may therefore be claimed in legal form, either by the
children or descendants- who shall not have received
any portion thereof, or even by those among whom
the distribution' shall have been made.
1079.
The distribution made by the ancestor may.be
impeached for cause of waste of more than a fourth ^
296 Book III. — Modes (jf acquiring Properly.
it may also be so in case it should result from the
distribution and from the di^ositions made in pre-
ciput, that one of the coparceners shall have an
advantage gi*eater than the law permits him.
1080.
Tlie child who, for one of the causes expressed in
the preceding article, shall impeach the distribution
made by the ancestor, must advance the expenses of
the estimate ; and he shall bear them eventually, as
well as the charges of the contest, if the objection is
not founded.
CHAPTER VIII.
Of Donations made by the Marriage-contract to the
Parties, and to Children to be bom of the Marriage,
1081.
Every donation during life of present property,
though made by contract of marriage to the married
parties, or to one of them, shall be subject to the
general rules prescribed for donations made under
this title.
It shall not take place for the benefit of children
to be born, except in the cases enumerated in cap. 6
of the present title.
1082.
The fathers and mothers, the other ancestors, the
collateral relations of the married parties, and even
Title II.— Donations and Wills. 2^7
strangers, may, by the contract of marriage, dispose
of the whole or of part of the property which they
shall leave at the day of their death, as well for the
benefit of the married parties, as for the benefit of
children to be born of their marriage, in the case in
which the donor shall survive the married party
donee.
A similar donation, although made for the. benefit
only of the married parties or of one of them, shall
be always, in the said case of survivorship by the
donor, presumed to have been made for the benefit
of the children and descendants to be born of the
«
marriage.
108S.
The donation, in the form contained in the pre-
ceding article, shall be irrevocable, in this sense only
that the donor shall be no longer capable of disposing
by gratuitous title of the objects comprised in the
donation, unless it be for moderate sums under the
title of recompense or otherwise.
1084.
The donation by marris^e-contract may be made
cumulatively of present and future property, in whole
or in part, on condition that there shall be annexed
to the act a statement of the debts and charges of
the donor existing at the day of the donation ; in
which case it shall be competent to the donee, at the
death of the donor, to make election of the present
property, renouncing the residue of the property of
the testator.
898 Book IH.^^Modes of acquiring Property.
1085.
If the statement of which mention is made in the
preceding article ha9 not been annexed to the act
containing the donation of the present and future
property, the donee shall be compelled to accept or
reject such donation for the whole. In case of ac-
ceptance, he can only claim the property which shall
be found in existence at the day of the donor's de-
cease, and he shall be subject to the payment of all
the debts and encumbrances of the succession.
1086.
The donation by marriage-contract in favour of
married persons and of children, to be born of their
marriage, may furthermore be made, on condition of
paying without distinction all the debts and encum-
brances on the succession of the donor, or under
other conditions, the execution of which might de-
pend on his will, by whomsoever the donation shall
have been made ; the donee shall be bound to fulfil
such conditions, unless he prefer renouncing the do-
nation ; and in case |;he donor, by the marriage-con*
tract, shall reserve to himself the liberty of disposing
of an article comprised in the donation of his present
prc^rty, or of a fixed sum to be taken out of the
same property, the article or the sum, if he die with-
out having disposed thereof, shall be taken to be
comprised in the donation, and shall belong to the
donee or to his heirs.
1087.
Donations made by contract of marriage shall not
Title IL—J)onations and Wills. 299
be impeached, or declared null, under pretence of
want of acceptance.
1088.
Every donation made in favour of marriage shall
be void, if the marriage do not follow.
1089.
Donations made to one of the married parties, in
the terms of articles 1082, 1084, and 1086, above-
mentioned, shall become void, if the donor survive
the married party donee and his posterity.
1090.
All donations made to married persons by their
marriage-contract shall, at the time of opening the
succession of the donor, be reducible to the portion
of which the law shall permit him to dispose.
CHAPTER IX.
Of Dispositions between Married Persons, either by
Contract of Marriage, or during Marriage.
1091.
Wedded persons shall be allowed, by the marriage-
contract, to make to each other, or one of the two to
the other, such donation as shall be deemed con-
venient, subject to the modifications hereafter ex-
pressed.
1092.
Every donation during life of present properly,
300 Book III.^^Modes of acquiring Property.
made between wedded persons by the marriage-con -
tract, shall be taken not to have been made with
condition of survivorship by the donee, unless such
condition has been formally expressed ; and it shall
be subject to all the rules and forms above prescribed
touching donations of this description.
1098.
The donation of future property, or of present and
future property, made between wedded persons by
marriage*contract, whether single or mutual, shall
be subject to the rules established by the preceding
chapter, with regard to, similar donations which shall
be niade to them by a third person ; saving that it
shall not be transmissible to the issue of such mar-
riage, in case of the death of the wedded person donee
before the other.
1094.
The husband shall be allowed, either by marriage-
contract^ or during the marriage, in the case where
he shall leave neither children nor descendants, to
dispose in favour of his wife, absolutely, of every
thing which he might dispose of in favour of a
stranger, and in addition of the usufruct of the en-
tirety of the portion of which the law prohibits the
disposition to the prejudice of heirs.
And in the case where the husband donor shall
leave children or descendants, he may give to his
wife either a fourth absolutely, and another fourth
in usufruct, or the moiety of his property in usu-
fruct only.
Title II.— Donations and Wills. 801
1095.
A minor shall not be allowed by marriage-con-
tract to give to his wife, either by single or mutual
donation, except with the consent and assistance of
those whose consent is requisite for the validity of
his marriage ; but with such consent he is permitted
to give all that the law allows a husband of full age
to give to his wife.
1096.
All donations made between wedded persons
during marriage, shall be always revocable, although
entitled as during life.
The revocation may be made by the wife, with-
out being thereto authorised by the husband or by
the law.
Such donations shall not be revoked by the cir-
cumstance of children.
1097.
Wedded persons shall not be permitted during
marriage to make to each other, either by act during
life or by will, any mutual and' reciprocal donation
by one and the same act. ^
1098.
The husband or wife who, having had children by
another bed, shall contract a second or su][)sequent
marriage, shall not be permitted to give to such new
spouse more than one portion of a legitimate child,
and provided that in no case such donations exceed
a fourth of the property.
SOB Book IIL-^Modes ofacquiri)9g Proper tif.
1099.
Wedded persons shall not be permitted to give
each other indirecUy beyond what is allowed them
by the above r^^tions^
Every donation^ either dii^uised, or made to inter^
mediate pei«ons, shall be null.
1100.
Donations by one of the wedded persons to the
children or to one of the children of the other» the
issue of a former muriage, shall be deemed to have
been made to intermediate persons, as well as those
made by the donor to relations to whom the other
wedded party shall be heir presumptive on the day
of the donation, although the latter may not have
survived his relation donee*
TITLE III.
OP CONTRACTS OR CONVENTIONAL OBLIGATIONS
IN GENERAL.
Decreed 7th of February, 1804. Promidga^ed the I7th of the
same Month.
CHAPTER I.
Pretimnarff RegfdaUons.
1101.
A contract is an agreement which binds one or
TitleIIL^^€oniract$or CattvemknuU Obligatkms.
more persons^ towards another or several others, to
give, to doy or act to do. something*
A contmct is sywiUagmatkal or iiiakral when the
contractors bind themselves mutually some of them
towards the remainder.
IIOS.
It is unilateral when it binds one person or several
towards one other or several others, without any
engagement beiAg made on the part of such latter.
1104.
It is commutative when each of the parties binds
himself to give or to do a thing which is regarded as
the equivalent for that which is given him, or for
that which is done for him.
When the equivalent consists in the chance of
gain or loss for each of the parties, in consequence
of an uncertain event, the contract is aleatory.
1105.
The contract of beneficence is that in which one
of the parties procures for the other an advantage
purely gratuitous.
•
110(k
The contract by tmerom tUk is that which subjects
each of the parties to give or to do something*
JOB Book III.'^Modes ofacquiti)9g Property.
1099.
Wedded perecms shall not be permitted to give
each other mdirecdy beyond what is allowed them
by the above r^^tions^
Every donation^ ^ther dii^uised, or made to inter-
mediate pei«ons, shall be null.
1100.
Donations by one of the wedded persons to the
qhildren or to one of the children of the other, the
iMue of a former mwriage» shall be deemed to have
been made to intermediate persons, as well as those
made by the donor to relations to whom the other
wedded party shall be heir presumptive on the day
of the donation, although the latter may not have
survived his relation donee.
TITLE III.
OP CONTRACTS OR CONVENTIONAL OBLIGATIONS
IN GENERAL.
Decreed 7th of February, 1804. Promidgdted the I7th txf the
same Month.
CHAPTER I.
PreUminmy RegukUians.
1101.
A contract is an agreement which binds one or
Title IIL^-€ontract$ or ConventitmalObiigathns.
more persons^ towards another or several other3, to
give, to do, or act to do. something*
^ •
1108.
A contract is sj^naUagmaHcal or Uialeral whsa the
contractors l^nd themselves motuallj some of them
towards the remainder.
IIOS.
It is unilateral when it binds one person or several
towards one other or several others, without any
ei^i^emttit being made on the part of such latter.
1104.
It is commutative when each of the parties binds
himself to give or to do a thing which is regarded as
the equivalent for that which is given him, or for
that which is done for him.
When the equivalent consists in the chance of
gain or loss for each of the parties, in consequence
of an uncertoin event, the contract is aleatory.
1105.
The contract of beneficence is that in which one
of the parties procures for the other an advantoge
purely gratuitous.
IKMk
The contract b^ merota title is that which sufafects
each of the parties to give or to do something.
I ►-
SW Book III.'-^Modes qfacqmfi)9g Proper tj^.
1099.
Wedded perMns shall not be permitted tc
each other indirectly beyond what is allowed
by the above r^pulations^
£very donatioa^ ttther disguised, or made to
mediate peisons, ahall be aulK
1100.
Donations by one of the wedded persons 1
children or to one of the children of the othc
issue of a former marriage, shall be deemed tc
been made to intermediate persons, as well as
made by the donor to rektions to whom the
wedded party shall be heir presumptive on tl
of the donation, although the latter may no^
survived his relation donee«
TITLE III.
OF CONTRACTS OR CONVENTIONAL OBLI6A1
IN GENERAL.
Decreed 7th of February, 1804. Promulgated the 17;
same Month.
CHAPTER I.
Pretimnary Regidations.
1101.
A contract is an agreement whieh bind
P
V
(T
w
I
ID
n
id)
It
0
P
0
.,^
•■'J
"-0
- -ti
r.O
11
Ub
i )
L^^Contractsar Conpemkmal Obligations.
ersoiis> towards another or several other3, to
) do> or aot to do domethtiig.
* < •
1108.
>ntract is ^ynaUagmatical or Ai&ifcra/wbM& the
:tors bind themselves matuallj some of them
s the remainder.
IIOS.
unilateral when it biiids one person or several
.s one other or several others, without any
smtfit being made on the {wrt of such latter.
1104.
s commutative when each of the parties binds
f to give or to do a thing which is regarded as
univalent for that which is given him, or for
^hich is done for him.
len the equivalent consists in the chance of
>r loss for each of the parties, in consequence
uncertain event, the contract is aleatory.
1105.
le contract of ben^ence is that in which one
le parties procures for the other an advantage
iy gratuitous.
•
1106w
he contract l^ merout UHe is that which txAiftoto
I of the parties to give or to do something.
b/
Book IIL— Modes of acquiring Proper hf.
1099.
Wedded persons shall not be permitted to give
each other indirecdy beyond what is allowed them
by the above regulations^
Every donatioa^ either disguised, or made to inter^
mediate pensons, shall be null.
1100.
Donations by one of the wedded persons to the
children or to one of the children of the other, the
issue of a former marriage, shall be deemed to have
been made to intermediate persons, as well as those
made by the donor to relations to whom the other
wedded party shall be heir presumptive on the day
of the donation, although the latter may not hare
survived his relation donee«
TITLE III.
OP CONTRACTS OR CONVENTIONAL OBLIGATIONS
IN GENERAL.
Decreed 7th of February, 1804. Pnmtigf^d the \7ih of the
same Month.
CHAPTER I.
Regulations.
1101.
A contract is an agreement which binds one or
Title IIL-^CofUractsor ConpenUonalObiigations.
more persons^ towards another or several other3, to
give, to do, or act to do. something*
* • a •
1108.
A contract is sjftutUagmatkal or iUaleralwhtia the
contractors l^nd themselves motuallj some of them
towards the remainder.
IIOS.
It is unilateral when it binds one person or several
towards one other or several others, without any
engtigemeDt being made on the part of such latter.
1104.
It is commutative when each of the parties binds
himself to give or to do a thing which is regarded as
the equivalent for that which is given him, or for
that which is done for him.
When the equivalent consists in the chance of
gain or loss for each of the parties, in consequence
of an uncertain event, the contract is aleatory.
1105.
The contract of beneficence is that in which one
of the parties procures for the other an advantage
purely gratuitous.
110<k
The contract b^ merota title is that which sufafects
each of the parties to give or to do something.
S04 Book III. — Modes of acquiring Property.
1107.
Contracts, whether they have a particular deno-
minatioD, or whether they have not, are subject to
general rules, which are the objects of the present title.
Rules applicable to certain contracts are established
under the titles relating to each of them ; and the
rules applicable to commercial transactions are esta-
blished by the laws relating to commerce.
CHAPTER II.
Of Conditions essential to the Validitif of Agreements.
1108.
Four conditions are essential to the validity of an
agreement :
The consent of the party who binds himself;
His capacity to contract \
' A certain object forming the matter of the con-
tract ;
A lawful cause in the bond.
SECTION I.
Of Consent.
1109.
There can be no valid consent if such consent
have been given through mistake, or have been ex-
torted through violence or surreptitiously obtained
by fraud.
Title IIL^-'-Cantracts or Conventional Obligations. 806
1110.
Mistake is not a cause for annulling the agreement
except when it occurs in the very substance of the
thing which is the object thereof.
It is not a cause for nullity when it occurs only in
the person with whom it is intended to contract, un-
less the consideration of such person were the prin-
■
cipal cause of the agreement.
1111.
Violence exercised towards him who has contracted
. the obligation^ is a cause of nullity, although it have
been exercised by a third person diiferent from him
for whose benefit the agreement has been made.
1112.
That is violence which is of a nature to make an
impression on a reasonable person, and which may
inspire iiim with fear of exposing his person or his
fprtune to a considerable and present injury.
Regard must be had, on this subject, to the age, to
the sex, and condition of persons.
1113.
Violence is a cause of nullity of contract, not only
when it has been exercised over the contracting party,
but further when it has been so over his or her hus-
band or wife, over their descendants or ancestors.
1114.
Reverential fear only towards a father, mother, or
Book III.'^Modes o/acqmri)9g Proper tj^.
I09f.
Wedded perMns shall not be permitted to give
each other indirecdy beyond what is allowed them
by the above regulations^
£very doHatioQ, ttther disguised, or made to inter^
mediate peisons, shall be aulK
1100.
Donations by one of the wedded persons to the
children or to one of the children of the other, the
issue of a former marriage, shall be deemed to have
been made to intermediate persons, as well as those
made by the donor to relations to whom the other
wedded party shall be heir presumptive on the day
of the donation, although the latter may not have
survived his relation donee«
TITLE III.
OF CONTRACTS OR CONVENTIONAL OBLIGATIONS
IN GENERAL.
Decreed 7th of February, 1804. Promulgated the I7tk of the
same Month,
CHAPTER I.
PreRmnmy Regtdalions.
1101.
A contract is an agreement which binds one or
Title IIL^^Contracts or ConvaUhnaiObiigatums.
more persons^ towards another or several others, to
give, to do, or act to do. something*
1108.
A contract is synaUagrnaticdl or Mbfcro/ wh^i the
contractors bind themselves motuallj some of diem
towards the remainder.
IIOS.
It is unilateral when it binds one person or several
towards one other or several others, without any
ei^i^emeit being made <m the part of such latter.
1104.
It is commutative when each of the parties binds
himself to give or to do a thing which is regarded as
the equivalent for that which is given him, or for
that which is done for him.
When the equivalent consists in the chance of
gain or loss for each of the parties, in consequence
of an uncertain event, the contract is aleatory.
1105.
The contract of ben^ence is that in which one
of the parties procures for the other an advantage
purely gratuitous.
110<k
The contract b^ merota Utk is that which sufafects
each of the parties to give or to do something.
S14 Book III.— Modes ofacqturing Property.
by consequence of a superior force or of a fortuitous
occurrence^ the debtor has been prevented from
giving or doing that to which he has bound himself,
or has done that from which he was interdicted.
1149.
The damages and interest due to the creditor are,
in general, to the amount of the loss which he has
sustained or of the gain of which he has been de-
prived ^ saving the exceptions and modifications
following.
1150.
The debtor is only bound for the damages and in-
terest which were foreseen or which might have been
foreseen at the time of the contract, when it is not
in consequence of his fraud that the obligation has
not been executed.
1161.
Even in the case where the non-performance of
the contract results from the fraud of the debtor, the
damages and interest must not comprehend, as re-
gards the loss sustained by the creditor and the gain
of which he. has been deprived, any thing which is
not the immediate and direct consequence of the
non-performance of the contract.
1152.
When the agreement imports that he who shall
fail in executing it shall pay a certain sum under
Title III. — Contracts or Conventional Obligations. 315
the title of damages, there can be allowed to the
other party neither a greater nor a less sum.
1153.
In the obligations which are limited to the pay-
ment of a certain sum, the damages and interest re-
sulting from the delay in the performance consist
only of a condemnation to the interest fixed by the
law ; saving the rules peculiar to commerce and se-
curity.
Such damages and interest are demandable with-
out binding the creditor to prove any loss.
They are only due from the day of the demand,
except in cases wherein the law makes them run
absolutely.
1154.
Interest accruing from capital sums may produce
interest either by a judicial demand or by a special
agreementt provided that whether in the demand or
in the agreement, the interest in question has been
due for one entire year at least.
1155.
Nevertheless revenues falling due, such as rents of
farms, houses, arrears of perpetual annuities, or those
for life, produce interest from the day of demand
or by the agreement.
The same rule applies to restitutions of fruits, and
to interest paid by a third person to the creditor in
discharge of the debtor.
816 Book III. — Modes qf acquiring Property^
SECTION V.
Of the Interpretation ofAgreementi.
1156.
In agreements it is necessary^ to search into the
mutual intention of the contracting parties, rather
than to stop at the literal sense of terms.
1157.
When a clause is susceptible of two meanings, it
must rather be understood in that according to which
it may have some effect, than in that whereby it
cannot produce any.
1158.
Expressions susceptible of two meanings must be
taken in that which agrees best with the matter of
the contract.
1159.
Whatever is ambiguous must be interpreted ac-
cording to the usage of the country where the con-
tract is made.
1160.
Clauses usual in the contract must be supplied
therein although they are not expressed.
1161.
All the clauses of agreements are interpreted by
each other, giving to each the sense derived from
the entire act.
Title IIL^-^^Cantracts or Conventional Obligations^ 817
116S.
In case of doubt, the agreement is interpreted
against him who has stipulated^ andinfavour of him
who has contracted the obligation.
116S.
However general the terms may be in which an
agreement is couched, it only comprehends things
respecting which it appears that the parties intended
to contract.
1164.
When a case has been put in a contract for the
purpose ^f explaining the obligation, it is not to be
inferred to have been designed to restrict the extent
to which the engagement goes of right as regards
cases not expressed.
SECTION VI.
Of the Effect of Agreementt 0$ respects tUrd Persons*
1165.
Agreements have no effisct but between the con-
tracting parties ; they do not work injury to a third
person, nor can they profit him except in the case
provided for by article llSl.
1166.
Nevertheless creditors may put in force all claims
and suits belonging to their debtor, with the excep-
tion of those whidi are exclusivdy attached to the
person.
818 Book III. — Modes of acquiring Property.
1167.
They may also, in their own name, impeach acts
made by their debtor in fraud of their rights.
They must nevertheless, as regards their rights, set
forth under the title ** Of Successions,** and under the
title " Of the Marriage Contract, and tf the respective
Rights of married Persons^** conform themselves to
the rules which are therein prescribed.
CHAPTER IV.
Of the dijffhrent Species of Obligations.
SECTION I.
OfconditioMii OUigati^ns.
§ I. Of Conditions generally^ and of their different Kinds,
1168.
The obligation is conditional when it is made to
depend on an event future and uncertain, either by
suspending it until the event happens, or by receding
therefrom accordingly as the event shall happen or
not.
1169.
A casual condition is that which depends on
chance, and which is in no respect in the power of
the creditor or of the debtor.
1170.
A potestative condition is that which causes the
performance of the agreement to depend on an
Title III. — Contracts or Conventional Obligations. 819
event which it i^ in the power of one or other of the
contracting parties to cause to happen or to prevent
from doing so.
1171.
A miaed condition is that which depends at once
on the will of one' of the contracting parties, and on
the will of a third person.
1172.
Every condition of a thing impossible, or contrary
to good morals, or prohibited by the law, is null, and
renders null the agreement which depends thereon.
1173.
The condition of not doing an impossible thing
does not render null the obligation contracted sub-
ject to such condition.
1174.
Every obligation is null when it has been con-
tracted under a potestative condition on the part of
him who binds himself. '
1175.
Every condition must be accomplished in the man-
ner in which the parties have probably wished and
intended that it should be.
1176.
When an obligation is contracted under the con-
dition that an event shall happen within a fixed time.
3S0 Book IIIr^Modes ofacqturing Property.
such condition is deemed to have failed when the
time is expired without the event having taken place.
If there be no time fixed, the condition may always
be accomplished ; and it is not taken to have failed
until it has become certain that the event will not
happen.
1177.
When an obligation is contracted under the con-
dition that an event shall not happen within a fixed
time, such condition is accomplished when the time
is expired without the event having occurred ; it is
equally so, if before the limit, it is certain that the
event will not occur ; and if there have been no de-
terminate period, it is not accomplished until it is
certain that the event will not happen.
1178.
The condition is taken to be accomplished, when
the debtor, bound under such condition, has pre-
vented the accomplishment thereof.
1179.
A condition accomplished has an effect retroactive
to the day on which the engagement was contracted.
If the creditor be dead before the accomplishment
of the condition, his rights pass to his heirs.
1180.
. A creditor may, before the condition is accom-
plished, put in force all acts preservative of his
rights.
JHtle IIL^'^'^jontracU or Conventional Obligations. 3«1
§ II. Of the suspensive Condition . •
1181.
The obligation contracted under a condition
suspensive is that which depends either on an event
future and uncertain, or on an event actually hap-
pened, but still unknown to the parties.
In the first case, the obligation cannot be per-
formed until afler the event.
In the second case, the obligation takes effect from
the day on which \\ was contracted. ,
#
1182.
When the obligation has been contracted under
a condition suspensive, the thing which forms the
matter of the agreement remains at the risk of the
debtor, who is not bound to deliver it except in case
of the event of the condition.
If the thing have perished entirely without the
fault of the debitor, the obligation is extinguished.
If the thing be deteriorated without the fault of
the debtor, the creditor has the choice either to dis-
solve the obligation, or to demand the thing in the
state in which it shall be found, without diminution
of price.
If the thing be deteriorated by the fault of the
debtor, the creditor has a right either to dissolve the
obligation, or to demand the thing in the state in
which it shall be found, with damages.
Y
S9S Book III.— Modes ofacquirmg Property.
t III. Of the ConditioB disaolatory.
1188.
A condition dissolutory is that which, when it is
accomplished, operates the revocation of the obliga^
tion, and which again puts affaiA^ in the same state
as though the obligation had never existed.
It does not suspend the performance of the obliga-
tion ; it merely obliges the creditor to restore iriiat
he may have f eceived, in the case in which the event
provided for by the condijtion happens.
1184.
A condition dissolutory is always intended in
synaliagmatical contracts, for the case in which one
of the two parties shall not satisfy his engagement.
In this case the contract is not dissolved absolutely.
The party towards whom the engagement has not
been performed, has his election either to compel
the other to performance of the agreement where it
is possible, or to demand the dissolution thereof with
damages and interest.
The dissolution may be demanded at law, and a
delay may be granted to the defendant according to
circumstances.
.^--^ntmeti or Conventional Ohlig
SECTION 11.
Of Obligations Jbr a Term.
1185.
A term differs from a condition, in that it does
not suspend the eqgagement, of which it retards the
execution only.
1186.
That which is not due until after a term, cannot
be demanded until the expiration of the term ; but
that which has been paid in advance, cannot be
recovered.
1187.
A term is always presumed to be stipulated in
favour of the debtor, unless it result from the stipu*
latibn, or from circumstances, that it has been also
agreed in favor of the creditor.
1188.
A debtor can no longer claim the benefit of the
term when he has become bankrupt, or when by bis
own act he has diminished the security which he had
given by the contract to his creditor.
SECTION III.
Of alternative Obligations,
1189.
A debtor in respect of an alternative obligation is
discharged by the delivery of one of two things which
were comprehended in the obligation.
Y 2
324 Book HI. — Modes of acquiring Property.
1190.
The election belongs to the debtor, if it have not
been expressly accorded to the creditor.
1191.
A debtor may discharge himself by delivering one
of two things promised ; but h^annot compel the
creditor to receive one part of one, and one part of
the other.
1192.
An obligation is pure and simple, although con*
tracted in an alternative manner, if the one of
two things promised could not be the subject of
obligation.
119S.
The obligation alternative becomes pure and sim-
ple, if one of the things promised perishes and is no
longer capable of being delivered, even with the
fault of the debtor. Th6 price of such thing cannot
be offered in its place.
If both have perished and the debtor is in fault
with respect to one of them, he must pay the price
of that which perished last.
1194.
When in the case* contemplated in the preceding
article, the election has been deferred by agreement
with the creditor : —
Either one of the things only has perished ; and
then if it is without the fault of the debtor, the cre-
ditor must have that which remains j if the debtor is
Title IIL^-^Ckmtracti or Conventional Obligations. S25
in faalt, the creditor may demand the thing which
remains, or the price of that which has perished ;
Or both the things have perished ; and then if the
debtor is in fault with regard to both, or even with
regard to one of them only, the creditor may demand
the price of either at his election.
0
1195.
If both the things have perished without the fault
of the debtor^ and before he is in delay, the obliga-
tion is extinguished, conformably to article 1302.
1196.
The same principles apply to cases in which there
are more than two things comprehended in the alter-
native obligation.
SECTION IV.
Of Off Hgatums, joint and iffoeroL
% I. Of Creditors jointly and severally interested.
1197.
The obligation is joint and several among several
creditors when the title gives Expressly to each of
them the right to demand payment of the whole of
the debt, and when payment made to one of them
discharges the debtor, although the benefit of the-
obligation be distributable and divisible between the
different creditors.
1198.
It is within the election of the debtor to pay to
one or other of the joint and several creditors, so
S80 Book III.f— Modes of acquiring Property.
long as be is not anticipated by the prosecution c^
one of tbem.
Neverthdess postponement, which is only made
by one of the joint and several creditors, does not
discharge the debtor, except on the part of such
creditor.
1199.
Every act which interrupts jmescription with re-
gard to one of the joint and several creditors, bene-
fits the other creditors.
§ II. Of Debtors jointly and severally interested.
1200.
Debtors are jointly and severally interested when
they are bound to one and the same thing, in such
manner that each one may be arrested for the en-
tirety, and when payment made by one discharges
tlie other towards the creditor.
ISOl.
The obligation may be joint and several, though
one of the debtors be bound differently from the
other to the payment of the same thing : for example,
if one be bound only conditionally, while the en.
gagement of the other is absolute, or if one has
taken a term which is not granted to the other.
120S.
Joint and several obligation is not to be presumed ;
it is necessary that it sliould be expressly stipulated.
TUte IIL^OmtracU or Cofwentianal Obligations. SfT
This rule is only suspended where the joint and
several obligation takes place absolutely, by virtue of
a regulation of the law.
1S08.
The creditor of an obligation contracted jointly
and severally may address himself to such one of the
debtors as he may choose, without the latter being
able to object the benefit of division.
1204.
Prosecutions direcfed against one of the debtors
do.not prevent the creditor from instituting the like
against the others.
1205.
If the thing du6 have perished by the fault or
during the delay of one or of several of the joint and
several debtors, the other joint-debtors are not dis-
charged from the obligation of paying the price of
such thing ; but the latter are not subject to damages.
A creditor can only recover damages against the
debtors by whose fault the thing has perished and
against those who were in delay.
1206.
Pk*osecutions made against one of joint and several
m
debtors interrupt prescription with respect to all.
1207.
A demand for interest made against one of the
joint and several debtors causes interest to run with
respect to all.
aas Book III.^^Modes of acquiring Property.
1808.
A joint and several debtor prosecuted by the cre-
ditor must oppose all the objections which flow from
the nature of the obligation, and all those which are
personal to himselfi as well as those which are com-
mon to all the joint-debtors.
He cannot oppose objections which are purely per-
sonal to some of the other joint-debtors.
1209.
When one of the debtors becomes sole heir of the
creditor^ or when the creditor becomes sole heir of
one of the debtors, the intermixture does not extin-
guish the joint and several credit except for the part
and portion of such debtor or creditor.
ISIO.
A creditor who consents to a division of the debt
with regard to one of the joint-debtors, preserves his
joint and several action against the others, but sub-
ject to a deduction of the share of the debtor who
was discharged from joint and several obligation*
1211.
A creditor who receives by division the share of
one of the debtors, without reserving in the quitr
tance his joint and several claims or his rights in ge-
neral, only renounces joint and several obligation
with regard to such debtor.
A creditor is not deemed to relinquish joint and
several obligation to a debtor by receiving from
him a sum equal to the portion in which he is hqund.
Ti/fe IIL-'^Contracts or Conventional Obligations. 829
if the acquittance do not import that it is for his
share.
It is the same with regard to a simple demand
made against one of the co-debtors for his share, if
the latter have not acquiesced in the demand, or if
a judgment of condemnation have not intervened.
. 1212.
The creditor who receives dividedly and without
reserve the portion of one of the joint-debtors with-
out arrears or interest of the debt, does not lose his
joint and several obligation except as regards the
arrears or interest fallen due, and not for those to
fall due, nor as regards the capital, unless the divided
payment have continued during ten consecutive
years.
1218.
The obligation contracted jointly and severally
towards the creditor divides itself absolutely among
the debtors, who are only bound therefore among
themselves each for his own share and portion.
1214.
The joint debtor of a joint and several debt, who
has paid it in entirety, cannot recover against the
others beyond the part and portion of each of them.
If one of them is found to be insolvent, the loss
-which his insolvency occasions, is subdivided by con-
tribution among all the other joint-debtors being
solvent and him who has made the payment.
380 Book III.^^Modes of acquiring Property.
1815.
In the case in which a creditor has renounced his
joint and several action against H>ne of the debtors, if
one or more of the remaining joint-debtors become
insolvent, the portion of the insolvents shall be pro-
portionably subdivided among all the debtors, even
among those previously discharged from joint and
several claims by the creditor.
1216.
If liie matter for which the debt has been con-
tracted jointly and severally relates only to one of
the joint and several co-obligors, the latter shall be
bound in the whole debt as respects the other joint*
debtors, who shall only be considered with reference
to him as his sureties.
SECTION V.
OfOiUga^iont divisibie and indhUiUe,
1217.
The obligation is divisible or indivisible accord-
ingly as it has for its object either a thing which in
its, delivery, or an act which in its execution, is or is
not susceptible of division, either material or intel-
lectual.
1218.
The obligation is indivisible although the thing or
the act which is the object thereof is divisible in its
nature, if the aspect under which it is considered in
jTiUellL — Contracts or Conventional ObUgalions. 881
the ob%ation does not render it susceptible of par*
tial execution.
1219.
Joint and several obligation stipulated does not
confer the character of indivisibility.
§ I. Of the Effecto of the divisible Obligation.
1220.
The obligation which is susceptible of division,
must be executed between the creditor and the
debtor as if it were indivisible. The divisibility has
no application but with regard to their heirs, who
cannot demand the debt or who are not bound to
pay it, except in the portions of which they are
seised, or in which they are bound as representing
the creditor or the debtor.
1221.
The principle laid down in the preceding article
admits of exceptions with regard to the heirs of the
debtor,
1st* In the case where the debt is on mortgage ;
Sd. When it is of a certain property ;
3d. When a debt alternative is in question regard-
ing things in the election of the creditor, one whereof
is indivisible ;
4th. When one of the heirs is charged alone, by
the document, with the execution of the obligation ;
5tfa. When it may be collected, either from the
nature' ^f the engagement, or from the thing which
SS2 Book IIL-^Modes qf acquiring Property*
forms the object thereof, or from the end which Is
proposed by the contract, that the Intention of the
contracting parties was that the debt should not be
partially discharged.
In the first three cases, the heir who possesses the
thing due or the estate pledged for the debt, may be
sued for the whole out of the thing due or out of the
estate pledged, saving the remedy against his coheirs.
In the fourth case the heir alone charged with the
debt, and in the fiflh case every heir, may also be
sued for the whole j saving his remedy against his
coheirs.
§ 11. Of the Effects of an indi visible Obligation*
1282.
£ach one of those who have contracted conjointly
an indivisible debt, is bound for the total thereof,
although the obligation have not been contracted
jointly and severally.
122S.
The same rule applies to the heirs of him who has
contracted a similar obligation.
1224.
Every heir of the creditor may demand in totality
the execution of the indivisible obligation.
He cannot alone remit the entirety of the debt ;
he cannot alone receive the value in place of the
thing. If one of the heirs have alone remitted the
debt or received the price of the thing, his coheir
Title IIL^^Contractsw Conventional Obligations. SS9
cannot demand the indivisible thing without account-
ing for the portion of the coheir who has made re-
mittance or received the price.
1235.
The heir of the debtor, charged with the entirety of
the obligation, may demand a delay in order to sue
his coheirs, unless the debt should be of a nature
not capable of being acquitted except by the heir
charged, who may then be condemned alone ; saving^
his remedy for indemnification against his coheirs.
SECTION VI.
Of Obligations toith Penal Clauses.
1226.
The penal clause is that^ by which a person, in
order to assure the performance of an agreement,
binds himself to something in case of non-perform-
ance.
1227.
The nullity of the principal obligation carries with
it that bf the penal clause.
The nullity of the latter does not draw after it
that of the principal obligation.
1228.
The creditor is allowed to sue for performance of
the principal obligation, in lieu of demanding the
penalty stipulated against the debtor who is in delay.
SS4 Book IIh-^Mode$ of acquiring Property.
1889.
The penal clause is the compensation for the
damages which the creditor is subjected to from the
non-performance of the principal obligation.
He cannot demand at the same time the principal
and the penalty, unless the latter have been stipulated
for delay only.
12S0.
Whether the original obligation contain, or whe-
ther it do not contain a term within which it must
be accomplished, the penalty is not incurred until he
who is bound either to deliver, or to take, or to do^
is in delay.
ISSl.
A penalty may be modified by the judge when
the principal obligation has been executed in part.
12S8.
When the original obligation contracted with a
penal clause relates to a thing indivisible, the penalty
is incurred by the contravention of one only of the
heirs of the debtor, and it may be demanded, either
in entirety against him who has so acted in contra-
vention, or against each of the coheirs for their part
and portion, and conditionally for the wRole, saving
their remedy against him who has actually incurred
the penalty.
1288.
When the original obligation contracted under a
penalty is divisible, the penalty is only incurred by
that one of the heirs who contravenes such obligation.
Htle IIL---C(mttacU or Conventional ObligaHcns. 385
and in the proportion only in which he was bound in
the principal obligation, without any action against
those who have performed it.
This rule admits exception when the penal clause
having been added with the intention that the pay-
ment should not be made partially, one coheir has
prevented the performance of the obligation in tota-
lity. In such case the entire penalty may be de-
manded against him and against the other coheirs for
their portion only, saving their remedy.
CHAPTER V.
Of the Ejctinction of ObUgations.
1SS4.
Obligations are extinguished.
By payment.
By novation.
By voluntary remission,
By compensation.
By intermixture.
By the loss of the thing,
By nullity. or rescission.
By the effect of the condition dissolutory, which
has been explained in the preceding chapter.
And by prescription, which shall form the subject
of a particular title.
acquiring
SECTION L
Of Payment.
§ I. Of Payment in genera]. -
12S5.
Every payment supposes a debt ; that which has
been paid without being due is subject to recovery.
The recovery is not permitted with respect to na-
tural obligations which have been voluntarily dis-
charged.
1236.
An obligation may be discharged by every person
who is interested therein, such as a co-obligor or a
surety.
The obligation may even be discharged by a third
person who is not interested therein, provided such
third person act in the name and in discharge of
the debtor, or that if he act in his own proper name,
he is not substituted into the rights of the creditor.
1287.
The obligation to do an act cannot be discharged
by a third person against the consent of the creditor,
when the latter has an interest in its being perform-
ed by the debtor himself
1238.
In order to pay validly, it is necessary to be pro-
Title III.^^O)ntTact$ or Conventional Obligations. 887
prietor of the thiog given in payment, and capable
of alienating it.
Nevertheless the payment of a sum in money or
other thing which is consumed by using, cannot be
recovered against the creditor who has consumed it
boni fide, although payment thereof have been made
by him who was not the proprietor thereof or who
was not capable of alienating it,
1239.
The payment must be made to the creditor or to
some one having authority from him, or who shall
be authorised by the court or by the law to receive,
for him.
Payment made to one who shall not have autho*.
rity to receive for the creditor, is valid, if the latter
ratify it or if he have profited thereby.
1240.
Payment made boni fide to him who is in pos-
session of the credit, is valid, although he be so
by eviction.
1241.
Payment made to the creditor is not valid if ha
were incapable of receiving it, unless the debtor can
prove that the thing paid has turned to the benefit
of the creditor.
1242.
Payment made by the debtor to his creditor,
to the prejudice of a seizure or opposition, is not
z
838 Book III. — Modes of acquiring Property^
valid with regard to the crelditors seizing or opposing ;
the latter may, according to their claim, compel him
to pay, afresh, saving in such case only, his remedy
against the creditor.
1248.
The creditor cannot be compelled to accept a
thing different from that which is due to him, al^
though the value of the thing tendered should be
equal or even superior.
1244.
The debtor cannot oblige the creditor to receive
partial payment of a debt, although divisible.
The judge may nevertheless, in consideration of
the debtor's situation, and using this power with
great caution, award moderate delays for the pay*
ment, and suspend the course of the suit> putting
all things in the same state.
1245.
A debtor in a certain and determinate property is
discharged by the remittance of such object in the
state in which it may be at the time of delivery, pro-
vided that the deteriorations which have occurred
therein do not proceed from his act or fault, nor
from that of persons for whom he is responsible ; pro-
*
vided also that previously to such deteriorations he
were not in delay.
1246.
If the debt consists of a thing which cannot be
determined except by its species, the debtor shall
Title III. — Contracts or Convenihnal Obligations. 3S9
not be bound, in order to his discharge, to give it of
the best kind ; but he must not offer the worst.
1347.
The payment must be performed in the place
appdnted by the agreement. If the place be not
designated therein, when a certain and determinate
property is in question, it must be made in the place
where the thing which is the object of the obligation
was at the date thereof.
With the exception of these two cases, the pay*
ment must be made at the domicile of the debtor.
1848.
The expenses of the payment are at the charge of
the debtor.
§ IL Of Payoient with Sabstitntion.
1249.
Substitution into the rights of the creditor for the
benefit of a third person who pays him, is either con-
ventional or legal.
1250.
Such substitution is conventional,
1st. When the creditor receiving his payment from
a third person substitutes him into his rights, actions,
privileges, or mortgages against the debtor, such
substitution must be express, and made at the same
time as the payment ;
2d. When the debtor borrows a sum for the pur-
z 2
840 Book IIL^^Modes of acquiring Property.
pose of paying his debt, and of substituting the
lender into the rights of the creditor, it is necessary
to the validity of such substitution, that the act of
borrowing and the acquittance should be made be-
fore notaries ; that in the act of borrowing it should
be declared that the sum has been borrowed ia order
to make payment, and that in the quittance it should
be declared that, the payment has been made with
money furnished for that purpose by the new. cre-
ditor. Such substitution is operative without the
concurrence of the creditor's assents
1251.
Substitution takes place absolutely,
1st. For his benefit who being himself a creditor
pays another creditor who has a preferable claim on
account of his privileges or mortgages ; ,
2d. For the benefit of the purchaser of an im-
moveable, who employs the value of his purchase in
payment of creditors to whom such estate was
mortgaged ;
Sd. For his benefit who being bound with others
or for others for the payment of the debt, had inter-
est in discharging it ;
4th. For the benefit of the beneficiary heir who has
paid out of his own funds the debts of the succession.
1252.
The substitution established by the preceding ar-
ticles takes place as well against sureties as against
debtors j it is not allowed to work injury to the ere-
n-r,'^
Title III. — Contracts or Cofiventional Obligations. 841
ditor where he has only been paid in part ; in such
case he may exercise his rights, as respects what re-
mains due to him, by preference against him from
whom he has only received a partial payment. .
I
§ III. Of the Application of Payments.
1258.
He who owes several debts has the right to declare,
when he pays, which debt it is his purpose to dis-
charge.
' 1254.
He who owes one debt bearing interest or pro-
ducing arrears cannot, without the consent of the
creditor, apply the payment which he makes to the
capital in preference to the arrears or interest : the x^y^^
payment made on the capital and interest, but which
is not entire, is applied at first to the interest*
1255.
When he who owes divers debts has received an
acquittance by which the creditor has deducted
what he has received from one of the debts speci-
fically, the debtor can no longer demand deduction
from a different debt, unless there have been fraud
or surprise on the part of the creditor.
*
1256.
When the quittance does not contain any applica-
tion, the payment must be deducted from the debt
which the debtor had at that time the most interest
348 Book IIL^^Modes qfMquiring Proper^.
in acquitting among those which are equally due ;
otherwise, from the debt due though less burden-
some than those which are not so.
If the debts are of equal nature, the deduction is
made from that of longest standing : all things being
equal, it is made proportionably.
§ IV. Of Tenders of Pftyment^ and of Deposit.
1257.
When the creditor refuses to receive his payment,
the debtor may make him real offers, and on the re-
fusal of the creditor to accept them, may deposit
the sum or the thing offered.
Real offers followed by a deposit discharge the
debtor } they have with respect to him the effect of
payment, when validly made, and the thing thus de-
posited remains at the risk of the creditor.
1258.
In order that real. offers should be valid, it is ne-
cessary,
1st. That they should be made to the creditor ca-
pable of receiving, or to a person who has authority
to receive for him ;
2d. That they should be made by a person ca-
pable of paying ;
3d. That they should consist of the entire sum
demandable, of arrears or interest due, of liquidated
damages, and of a sum for unliquidated damages^
saving to perfect it ;
or Camoefahndl Obligations. 348
4th. That the term be expired, if it have been
stipulated in favour of the creditor ;
5th. That the condition under which the debt has
been contracted has occurred ;
6th. That the offers were made at the place agreed
on for the payment^ and that, if there be no special
agreement on the place of payment, they should be
made personally to the creditor, or at his domicile,
or at the domicile chosen for the performance of the
agreement ;
7th. That the offers be made by a ministerial of-
ficer having authority for these descriptions of acts.
1259.
It is not necessary to the validity of the deposit
that it should have been authorised by the judge ;
it suffices,
1st. That it have been preceded by a summons
signified to the creditor, and containing an indication
of the day, the hour, and the place, where and when
the thing offered will be deposited ;
2d. That the debtor divest himself of the thing
offered, by sending it to the dep6t marked out by
the law for the reception of deposits, with the inter-
est up to the day of the deposit ;
3d. That a statement have been drawn up by the
ministerial officer, of the nature of the commodities
offisred, of the refusal which the creditor has made
to receive them, or of his non-appearance, and finally
of the deposit ;
4th. That in case of non-2(ppearance on the pari
S44 Book III. — Modes of acquiring Property.
of the creditor, the statement respecting the deposit
have been signified to him with a summons to take
away the thing deposited.
1260.
The expenses of real offers and of deposit are» if
vah'dy charged upon the creditor.
1861.
So long as the deposit is not accepted by the ere- *
ditor, the debtor may withdraw it ; and if be do
withdraw it, the parties jointly indebted with him
and his sureties are not discharged.
1262.
When the debtor has himself obtained a judgment
passed with force of a matter decided, which has de-
clared his offers and his deposit good and valid, he
is no longer at liberty, even with the consent of the
creditor, to withdraw his deposit, to the prejudice of
those jointly indebted with him, or of his sureties.
1268.
A creditor who has consented that the debtor
should withdraw his deposit after it has been de-
clared valid, by a judgment which has acquired the
force of a matter decided, can no longer, with a view
to the payment of his demand, exercise the privileges
or mortgages attached thereto ; the mortgage ceases
to exist except from the day on which the act by
vtrhich he consented that the deposit should be with-
Titk III.— Contracts or Conventional Obligations. 345
drawn shall be reinvested with the forms requisite to
re-establish the mortgage.
1264.
If the thing due is a certain property which must
be delivered in the place where it is found, the
debtor must give the creditor notice to remove it, by
act notified personally to him or at his domicile, or
at the domicile elected for the execution of the
agreement Such notice having been given, if the
creditor do not remove the thing, and the debtor
wants the place in which it stood, the latter may ob-
tain from the court permission to put it in deposit
in some other place.
> f V. Of the Cession of Property.
1265.
The cession of property is the abandonment made
by a debtor to his creditors of all his property, when
he finds himself no longer in condition to pay his
debts.
1266.
The cession of property is voluntary or judicial.
1267.
The voluntary cession of property is that which
the creditors accept voluntarily, and which has no
efiect beyond that which results from the contract
passed between them and the debtor.
846 Book III.— 'Modes of acquiring Property.
1S68.
Judicial cession is a benefit which the law accords
to the unfortunate and bond fide debtor, to whom it
is allowed, in order to secure the liberty of his person,
to make judicially an abandonment of all his property
to his creditors^ notwithstanding any stipulation to
the contrary.
1269.
Judicial cession confers no property on the cre-
ditors ; it gives them the right only of making sale
of the property for their own benefit, and of enjoying
the revenues thereof until the sale.
V
\'
1270.
Creditors cannot refuse a judicial cession unless it
be within the cases excepted by the law.
It operates a discharge from corporeal restraint.
Further, it does not liberate the debtor beyond
the amount of the value of the property abandoned;
and in the cases where that shall prove insufficient,
and other property shall come to his hands, he is
compelled to abandon it until complete payment.
SECTION II.
Of Novation*
1271.
Novation is effected in three ways :
1st. When the debtor contracts towards his ere-
Titk IIL^-<!ontracts or Conventional Obligations. 847
dttOT a new debt which is substituted for the ancient
one, which latter is extinguished ;
2d. When a new debtor is substituted for the an-
cient one who is discharged by the creditor ;
Sd. When, by the effect of a new engagement, a
new creditor is substituted for the ancient one, to-
wards whom the debtor becomes discharged.
1272-
Novation can only be effected between persons
capable of contracting.
127S-
Novation is not to be presumed ; it is necessary
that the intention to effect it should clearly result
from the act.
1274.
Novation by the substitution of a new debtor, may
be effected without the concurrence of the first.
1275.
The delegation by which a debtor gives to a cre-
ditor another debtor who binds himself towards the
creditor, does not operate novation, if the creditor
has not expressly declared that he intended to dis- ,
charge his ddbtor who has made the delegation.
1276.
The creditor who has discharged the debtor by
whom delegation has been made, has no remedy
against such debtor, if the delegated person become
848 Book III. — Modes of acquiring Property.
insolvent^ unless the acts contain an express reserva-
tion thereof, or that the delegated party has been
already openly a bankrupt, or has fallen into embar-
rassment at the moment of the delegation.
1277.
The simple indication made by the debtor, of a
person who is to pay in his place, does not operate
novation.
The same rule applies to the simple indication
made by the creditor, of a person who is to receive
for him.
1278.
The privileges and mortgages of an ancient debt
do not pass to that which is substituted for it, unless
the creditor have expressly reserved them.
1279.
When the novation is effected by the substitution
of a new debtor, the original privileges and mort-
gages of the debt cannot pass to the property of the
new debtor.
1280.
When the novation is effected between the creditor
and one of the joint and several debtors, the privileges
and mortgages of the ancient debt cannot be re-
served except iipon his property who contracts the
new debt.
1281.
Joint-debtors are discharged by novation made
between the creditor and one of the joint-debtors.
Title III. — Contracts or Conventional Obligations. 849
Novation operated with respect to the principal
debtor discharges his securities.
Nevertheless, if the creditor have required in the
first case the addition of the joint-debtors, or in the
second that of the securities, the ancient debt sub-
sists, if the joint-debtors or the securities refuse to
accede to the new arrangement.
SECTION III.
0/tke Remission of a Debt.
' 1282.
Voluntary remittance of the original document
under private signature, by the creditor to the debtor,
forms proof of discharge.
1283.
Voluntary surrender of an obligatory deed forms
presumption of the remission of the debt or payment,
without prejudice to contrary proof.
1284.
The surrender of the original document under
private signature, or of an engrossed copy of the
document to one of the joint and several debtors,
has the same effect for the benefit of his joint-debtors.
1285.
Conventional remittance or discharge for the be-
nefit of one of the joint and several debtors, liberates
350 Book IIL^^Modes qfacqturirtg Property.
all the rest, unless the creditor have expressly re-
served his rights against them*
In which latter case» he can no longer recover the
debt without deduction made of his share to whom
he has made remittance.
1S86.
Delivery of a thing given by way of security does
not suffice to raise presumption of the remission of
the debt.
1287.
Conventional remission or discharge accorded to
the principal debtor discharges the sureties ;
The same accorded to the surety does not liberate
the principal debtor ;
The same accorded to one of the sureties does not
discharge the others.
1288.
What a creditor has received from a surety in dis-
charge of his suretyship, must be deducted from the
debt, and applied to the discharge of the principal
debtor and of the other sureties.
SECTION IV.
Of Compensation,
1289.
When two persons find themsdves in each other's
debt, a compensation is effected between them ex«
THtle IIL-r-CanifiU^ts or Cowentmal Obligations. 951
tioguishing both debts in the manner and in the
cases hereafter expressed.
1290.
Compensation is effected absolutely by force of
law only» even without the knowledge of the debtors;
the two debts are reciprocally extinguished the in*
stant at which they are found to exist at the same
time up to the amount of their respective propor-
tions.
1291.
Compensation only takes place between two debts
which have equally for their object a sum of moneys
or a certain quantity of articles of consumption of
the same species, and which are equally liquidated
and demaqdable.
Loans of grain or commodities not contested, and
of which the value is regulated by the prices current,
may be balanced against sums liquidated and de>
mandable.
1292.
The term of grace is not an obstacle to compen**
sation.
1293.
Compensation takes place whatever may be the
causes of one or other of the debts, except in the
case,
1st. Of a demand for restitution of a thing of
which the proprietor has been unjustly deprived ;
2d. Of the demand of restitution of a deposit and
of a loan on usance ;
852 Book III. — Modes of acquiring Property.
Sd. Of a debt founded on alimony declared not
seisable.
1294.
The surety may oppose the compensation of that
which the creditor owes to the principal debtor ;
But the principal debtor cannot oppose the com-
pensation of that which the creditor owes to the
surety.
The joint and several debtor may in like manner
oppose the compensation of that which the creditor
owes to his co-debtor.
1295.
The debtor who has accepted absolutely and un-
conditionally the cession which a creditor has made
of his rights to a third person, can no longer oppose
to the assignee the compensation, which he might
before acce)ptance have opposed to the ceder.
With respect to. cession which has not been ac-
cepted by the debtor, but which has been notified to
him, it only prevents the compensation of debts pos-
terior to such notification.
1296.
When the two debts are not payable in the same
place, compensation thereof can only be opposed by
accounting for the expenses of the remission.
1297.
When there are several debts subject to compen-
sation due from the same person, the rules must be
Titk IIL— 'Contracts or Conventional Obligations. 853
followed for their compensation, which are esta-
blished touching deduction by article 1256.
1298.
Compensation does not take place to the prejudice
of rights acquired by a third person. Thus he who,
being a debtor, is become creditor subsequently to
seisure and arrest made by a third person into hi&
hatids, cannot oppose compensation to the preju-
dice of such seiser.
1299.
He who has paid a debt which was of right extin-
guished by compensation, can no longer, by pur-
suing the demand, the compensation ofwhichhehas
neglected to oppose, avail himself, to the prejudice
of third persons^ of the privileges and mortgages '
which were attached thereto, unless he had a suf-
ficient excuse for not being aware of the claim which
was to compensate his debt.
SECTION V.
Of Confusioft'
1300.
When the characters of debtor and creditoi* are
united in the same person, a confusion arises by law
which extinguishes the two claims.
1301.
The confusion which is effected in the person of
the principal debtor, benefits his sureties.
A A
854 BooJt III.^^Modes ofacquntng Property.
The same effected in the person of the surety does
not draw after it the extinction of the principal
obligation ; that which is effected in the person of
the creditor, does not benefit those jointly and seve-
rally indebted with him, except for the portion in
which he was debtor.
SECTION VI.
Of the Lost of the Thing due.
1S02.
When the certain and determinate property which
was the object of the obligation happens to perish,
is put out of traffic, or is lost in such manner that its
existence is absolutely unknown, the obligation is
extinguished if the thing have perished, or have been
lost without the fault of the debtor, and before he
have been in delay.
Even when the debtor is in delay, and if he have
not been charged with fortuitous occurrences, the
obligation is extinguished in the case where the
thing would equally have perished at the house of
the creditor if it had been delivered to him.
The debtor is bound to prove the fortuitous occur-
rence which he alleges.
In whatsoever manner a thing stolen have per-
ished, or have been lost, its loss does not exonerate
him who has removed it from restitution of the
price.
Title IIL'-'^Contracts or Conventional Obligations. 855
1S03.
When th^ thing has perislied, been put out of
traffic, or lost, without fault on the part of the debtor,
he is bound, if there are any claims or actions for in-
demnity in reference to such thing, to yield them to
his creditor.
SECTION VIL
Of the Action Jbr Nullity , or for Rescission of Agreements.
1304.
In all cases in which the action for nullity or
for rescission of an agreement is not limited to a less
time by the law, such action enures for ten years.
Such time does not run, in the case of duress, ex-
cept from the day on which it ceases ; in the case of
mistake or fraud from the day on which they have
been discovered; and as respects acts passed by
married women . unauthorised, from the day of the
dissolution of the marriage.
The time does not run With respect to acts made
by interdicted persons, except from the day on which
the interdiction is removed; and with respect to
those made by minors, only from the day of ma-
jority.
1805.
Simple injury gives ground for rescission in favour
of the minor not emancipated, against all kinds of
agreements ; and in favour of the minor emancipated
against all agreements which exceed the bounds of
A A 2
356 Book III. — Modes of acquiring Property.
his capacity, as was determined under the title " Of
Minorityy Guardianships and Emancipation.**
1306.
The minor is not relievable for cause of injury,
when it was merely the result of a casual and un-
foreseen event.
1307.
The simple declaration of majority, made by the
minor, forms no obstacle to his relief.
1308.
The minor being a tradesman, banker, or artisan,
is not relievable against engagements to which he is
liable in respect of his trade or craft.
1309.
The minor is not relievable against agreements
contained in his contract of marriage, when they
have been made with the consent and assistance of
those whose consent is requisite for the validity of
his marriage.
1310.
He is not relievable against obligations resulting
from his own wrong or quasi wrong.
1311.
He is no longer permitted to disclaim an engage-
ment which he subscribed in minority, when he has
ratified it in majority, whether such engagement
Titk III. — Contracts or Corwentional Obligations. 857
were null in its form, or whether it were only liable
to be relieved against*
1312.
When minors, interdicted persons, or married wo-
men are admitted in such capacities to obtain relief
against their engagements, the reimbursement of*
what, in consequence of such engagements, shall
have been paid during minority, interdiction, or mar-
riage, cannot be exacted from them, unless it be
proved that what has been paid has turned to their
advantage.
1318-
Persons of full age are not relieved for cause of
injury except in the cases and under the conditions
especially mentioned in the present code.
1314.
When the formalities required with respect to
minors or interdicted persons, either for alienation
of immoveables, or in a distribution of succession,
have been complied with, they are in reference to
such acts considered as having done then) during
majority or before interdiction. -
CHAPTER VI.
Of the Proof of' Obligations and of that of Payment.
1315.
The party who claims performance of an obliga-
tion, must prove it.
358 Book IIJ.'-^Modes qf acquiring Properitf.
On the other h wd, he who claims to be exonerated,
must establish payment, or vedfy the act w)uch led
to the extinction of his obligation.
1316.
The rules which relate to literal proof, testimonial
proof, presumptions, acknowledgment, and oath of
parties y are explained in the following sections.
SECTION I.
Of Literal Proof,
k\. Of an authentic Document.
1817.
An authentic kct is that which has been taken by
public officers whose duty it is to draw up. instru-
ments in the place where the act was reduced to
writing, and with the requisite solemnities.
1318.
The act which is not authentic through the income
petence or incapacity of the officer, or through a
defect of form, is equivalent to a private writing, if
it were signed by the pafties.
1319.
The authentic act supplies full credit to the agree-
ment which it contains between the contracting^par-
ties and their heirs or assigns.
TUkllL — Contracts or Conventional Obligations. 859
Nevertheless^in case of complaint of capital forgery^
the execution of the act charged to be forged shall
be suspended by the institution of the charge \ and
in case of inscription of forgery incidentally made,
the courts may, according to circumstances, suspend
provisionally the execution of the act.
The act, whether authentic or under private signa-
ture, affords proof between the parties even of that
which is expressed therein only in declaratory terms,
provided the declaration have a direct reference to
the disposition. Declarations foreign to the dispo-
sition can only serve as commencement of proof.
1321.
Defeasances can only produce their effect between
the contracting parties; they have no operation
against third persons.
§ II. Of an Act onder private Signatare.
1322.
The act under private signature, acknowledged by
the party against whom it is produced, or held by
law to have been acknowledged, obtains between
those who have subscribed it, their heirs and assigns,
the same credit as an authentic act.
1323.
The party against whom an act under private
signature is produced, is obliged formally to avow or
disavow his writing or signature.
860 Book III.^— Modes of acquiring Property*
His heirs or assigns may content themselves with
declaring that they do not know the writing or the
signature of their principal.
1324.
In the case in which the party disavows his wri-
ting or his signature, and in the case in which his
heirs or assigns declare they do not know it, the
verification thereof is ordered by the court.
1325.
Acts under private signature which contain
synallagmatical agreements are not valid except so
far as there has been made a number of originals
equal to that of the parties who have a distinct
interest.
One original is sufficient for all the parties having
the same interest.
Every original must include mention of the numr
ber of originals which have been made thereof.
Nevertheless, failure in mentioning that the origin-
als have been made double, triple, &c. cannot be
objected by him who has executed on his part the
agreement contained in the act,
1326.
A note or promise under private signature^ by
which one single party binds himself towards an-
other in the payment of a sum of money, or of a
thing capable of being valued, must be written
throughout by the hand of the subscriber ; or at least
it is necessary that besides his signature he should
Title III. — Contracts ofConventional Obligations. S6I *
write ** bon/* or " approtwi,** bearing in all letters
the sum or the quantity of the thing :
Excepting in the case where the act emanates
from tradesmen, artisans, labourers, vine-dressers,
day-labourers, and servants.
1827.
When the sum expressed in the body of the in-
strument is different from that which is expressed in
the " bon^** the obligation is presumed only to ex-
tend to the smaller sum, even when the act, as well
as the " 6ow,*' are written throughout by the hand of
the party bound, unless it can be proved on whose
part the mistake lies.
1328.
Acts under private signature only take date against
third persons from the day on which they have been
registered, from the day of the death of the sub-
scriber, or one of the subscribers, or from the day
on which the substance of them is verified in acts
drawa up by public officers, such as statements of
sealing or of inventory.
1329-
The registers of tradesmen do not supply against
those who are not so, proof of goods furnished as
contained therein, saving what shall be said with re-
spect to the oath.
1380.
The books of tradesmen afford proof against them ;
S6A Book IIL^^Modes qf acquiring Property.
but the party who desires to derive advantage there-
from, cannot separate them as to what they contain
contrary to his claim.
ISSl.
Domestic registers and papers do not form vouchers
for the party who has written them. They furnish
proof against him^ 1st, in all cases where they de-
clare formally payment received ^ 2d, where they
contain express mention that the memorandum has
been made to supply the want of a document in
fiivour of him for whose benefit they declare an
obligation.
1SS2.
Writing inserted by the creditor at the end, in the
margin, or on the back of a document which has
always remained in his possession, is evidence, though
not signed and dated by him, when it tends to esta-
blish the liberation of the debtor.
The same applies to writing inserted by the cre-
ditor on the back, or in the margin, or at the end of
tlie duplicate of a document or quittance, provided
such duplicate be in the hands of the debtor.
§ III. Of Tallies.
1333.
Tallies correlative to their patterns afford proof
between parties who are in the habit of thus verify,
ing commissions which they make and receive in
retail.
Title III. — Contracts or Conventional ObUgathns. 363
§ IV. Of Copies of Decoments.
1334.
Where the original document is in existence,
copies only afford proof of what is contained in isuch
document, the production of which may always be
required.
1335.
When the original document no longer exists,
copies furnish proof, agreeably to the following di-
stinctions :
1st. Engrossments, or the first copies, supply the
same proof as the original. It is the same with
regard to copies which have been taken by authority
of the magistrate, the parties having been present
or duly summoned, or with regard to such as have
been taken in presence of the parties, and with their
mutual consent.
2d. Copies which, without the authority of the
magistrate, or without the consent of the parties,
and subsequently to the deliverance of the engross-
ments or first copies, shall have been taken from the
minute of the act by the notary who received it, or
by one of his successors, or by public officers, who
in such capacity are the depositaries of the minutes,
may, in case of the loss of the original, be made evi-
dence when they are ancient.
They are considered as ancient when they are more
than thirty years old.
864 Book HI. — Modes of acquiring Property.
If they are less than thirty years old they can only
be made use ofas commencement of proof in writing.
Sd. When copies taken from the minute of an act
shall not have been so by the notary who received it,
or by one of his successors, or by public officers who
are in such capacity depositaries of the minutes, they
can only be made use of, notwithstanding any degree
of antiquity, as the commencement of proof in
writing.
4th. Copies of copies may, according to circum-
stances, be considered as corroborative.
1836.
The transcription of an act upon the public regis-
ters shall only be made use of as commencement of
proof in writing ; and it is necessary even for that,
1st. That it be manifest that all the minutes of
the notary, of the year in which the act appears to
have been made, are lost, or that it be proved that
the loss of the minute of this act have arisen from a
particular accident ;
Sd. That there exist a regular docket of the notary,
proving that the act was made at the precise date*
When^ by reason of the concurrence of these two
circumstances, proof by witnesses shall be admitted,
it shall be necessary that those who weregwitnesses|[of
the act, if they are still in existence, should be heard.
Title III. — Contracts or Conventional Obligations. 865
§ V. Of Acts of Recognition and Con&rmation.
1SS7.
Acts of recognition do not dispense with the pro-
duction of the original document, unless its tenor be
therein specially set forth.
That which they contain in addition to the ori-
ginal document, or that which is found therein dif-
ferent from it, has no effect.
Nevertheless, where there are several correspond-
ing acknowledgments confirmed by possession, and
of which one is thirty years old, the creditor may be
excused from producing the original document.
1388.
An act confirming or ratifying an obligation
against which the law admits an action for nullity or
rescission is only valid when it contains within it the
substance of such obligation, mention of the motive
for the action for rescission, and an intention to re-
medy the defect on which such action was founded.
Failing such act of confirmation or ratification, it
is sufficient that the obligation be executed volun-
tarily afler the period at which the obligation may
be validly confirmed or ratified.
Confirmation, ratification, or voluntary execution,
in the forms and at the period determined by the
law, imports renunciation of the arguments and ex-
ceptions which may be opposed to such act, without
prejudice nevertheless to the right of third persons.
•66 Book III. — Modes of acquiring Property.
1339.
The donor cannot remedy by any confirmative act
the defects of a donation during life ; null in form,
it is necessary that it should be re-executed in legal
form.
1340.
Confirmation, ratification, or voluntary performance
of a donation by the heirs or assigns of the donor^
after his decease, imports their renunciation of op-
position either to defects of form or any other ob-
jection.
SECTION n.
Of TeiHmonial Proofs
1841.
An act must be made before notaries or under
private signature, respecting all things exceeding the
sum or value of one hundred and fifty francs, even
in the case of voluntary deposits ; and no proof can
be received by witnesses against or beyond what is
contained in such acts, nor touching what shall be
alleged to have been said before, at the time of or
subsequently to such acts, although there may be
question of a sum or vahie less than 150 francs ;
The whole without prejudice to what is prescribed
in the laws relative to commerce.
1842. •
The above rule applies to the case in which the
instrument contains, besides the demand of capital.
Titk lU.-^-'Cantracts or Canvmtwnai Ob&gaHons. 867
a demand for interest, which, added to the capital,
exceeds the sum of one hundred and fifty francs.
1S4S.
The party who has made a demand exceeding one
hundred and fifty francs, can no longer be admitted
to testimonial proof even on reducing his original
demand.
1S44.
Proof testimonial, on the demand of a sum even
less than one hundred and fifty ftuncs, cannot be
admitted when such sum is declared to be the residue
or to form part of a larger credit which is not proved
by writing.
1845.
If in the same suit a party make several demands
of which there is no evidence in writing, and where,
if united together, they exceed the sum of one hun-
dred and fifty francs, proof by witnesses cannot be
admitted thereon, although the party allege that
such credits arise from different causes, and that they
accrued at different times, unless it be that such
claims proceed from succession, donation, or other-
wise from different persons.
1346.
All demands, of whatsoever description they may
be, which shall not be entirely proved by writing,
shall be formed by onesingle instrument; after which,
other demands, of which there shall be no proof in
v^riting, shall not be admitted.
868 Book IIL^^Modes of acquiring Property.
1847.
The rules above-mentioned admit of exception
when there is a commencement of proof in writing.
This denomination is applied to every act in wri-
ting which emanates from the party against whom
the demand is made, or from him whom such party
represents>and who renders probable, the fact alleged.
1848.
They admit moreover of exception in all cases
where it is impossible for the creditor to obtain a
literal proof of the obligation which has been con*
tracted with him.
This second exception applies,
1st. To obligations \yhicb spring from quasi-con-
tracts and from crimes or quasi-crimes ;
2nd. To necessary deposits made in case of fire,
fall of buildings, tumult or shipwreck, and to those
made by travellers lodging at an inn, the whole ac-
cording to the condition of the persons and the cir-
cumstances of the act ;
3d. To obligations contracted on the occurrence
of unforeseen accidents, in which it would have been
impossible to have had acts in writing ;
4th. In the case where the creditor has lost the
document which served him for literal proof, in con-
sequence of a fortuitous circumstance,, unforeseen,
and resulting from superior force.
Title HI. — Contracts or Conventional Oblisations. 869
SECTION III.
Of Presumptions.
m
1849.
Presumptions are the conclusions which the law
or the magistrate draws from a fact known or a fact
unknown.
§ I. Of Presumptions established by Law.
1850.
Legal presumption is that which is attached by an
express law to certain acts or to certain facts ; such
are,
1st. Acts which the law declares null, as presumed
to have been made in fraud of its regulations, re-
garding their quality only ;
2d. Cases in which the law declares property or
liberation to result from certain determinate circum-
stances ;
Sd. The authority which the law attributes to a
matter decided ;
4th. The force which the law attaches to the con-
fession of the party or to his oath.
1351.
The authority of a matter decided has no place
except with regard to that which formed the object
of the judgment. It is necessary that the thing de-
BB
870 Book III. — Modes of acquiring Property.
manded should be the same; that the demand should
be founded on the same cause; that the demand
should be between the same parties, and made by
and against them in the same capacity.
1852.
Legal presumption dispenses with all proof on his
part for whose benefit it exists.
. No proof is admitted against presumption of law,
when, on the basis of such presumption, it annuls
certain acts or restrains an action, unless it have
reserved contrary proof, and saving what shall be
said touching the oath and judicial confession.
§ n. Of Presumptions which are not established by Law.
1358.
■
Those presumptions which are not established by
law are committed to the sagacity and prudence of
the magistrate, who must only admit presumptiooa
grave, precise, and concordant, and in those cases
only in which the law admits testimonial proofs, un-
less the act should be impeached for cause of fraud
or deceit.
SECTION IV.
Of the AcknofwledgmefU of the Party.
1854.
The acknowledgment which is objected to a party
is either judicial or extrajudicial.
Title IIL^^ontracts or Conventional Obligations. 371
1355.
The allegation of an extrajudicial acknowledgment
purely is useless in all cases where a demand is in
question in which testimonial proof would not be
admissible.
1356.
Judicial acknowledgment is a declaration made in
court by the party or his attorney specially appointed.
It furnishes complete proof against the party who
made it.
It cannot be divided against him.
It cannot be revoked, unless it can be proved that
it proceeded from a mistake of fact
It cannot be revoked under pretext of a mistake
in law.
SECTION V.
Of Oath,
1857.
The judicial oath is of two species;
1st. That which one party tenders to another in
order to mak^ the judgment of the cause depend
thereon : it is called ** decUory ;*'
2d. That which is administered officially by the
judge to either of the parties.
§ I. Of the Oath decisory.
1358.
The oath decisory may be tendered in any descrip-
tion of dispute whatsoever.
B B 2
372 Bo€ik IIJ.-^Modes of acquiring Property.
1359.
It can only be tendered touching a fact personal
to the party to whom it is put.
1360.
It may be tendered in every stage of a cause, and
although there exist no commencement of proof of
the demand or of the objection on which it is
claimed.
1361.
The party to whom the oath is tendered, who re-
fuses it or who does not consent to tender it in re-
turn to his adversary, or the adversary to whom it
has been tendered in return and who refuses it, must
yield in his claim or in his objection.
1362.
The oath cannot be tendered in return when the
fact which is the object thereof does not lie between
the two parties, butis purely personal to him to whom
the oath was originally tendered.
1363.
When the oath tendered or ofiered in return has
been taken, the adversary is not admissible to prove
the falsity thereof.
1364.
The party who has tendered the oath or offered it
in return, is not allowed to retract after the adver-
sary has declared that he is ready to take such oath.
Title III. — Contracts or Conventional Obligations. 373
1365.
The oath when taken only affords proof in favour
of the party taking it, or against him and in favour
of his heirs and assigns, or against them.
Nevertheless the oath tendered by one of the joint
and several creditors to the debtor, only discharges
the latter as regards the share of such creditor ;
The oath tendered to the principal debtor dis-
charges equally his sureties ;
The same tendered to one of the joint and several
debtors benefits those jointly-indebted with him ;
And the same tendered to a surety benefits the
principal debtor.
In the two latter cases, the oath of the joint and
several debtor or of the surety does. not benefit the
other joint-debtors or the principal debtor except
when it has been tendered touching the debt, and
not in respect of the fact of the joint and several
claims or security.
§ II. Of the Oath officially administered.
1366.
The judge may tender the oath to one of the par-
ties, either to make the decision of the cause depend
thereon, or simply in order to determine the amount
of the sentence.
1367.
The judge cannot administer the oath officially,
either upon the demand, or on the objection which
is opposed thereto, except under the two following
conditions : it is necessary.
S74< Book IIL-^Modes of acquiring Property.
1 St. That the demand or the objection should not be
fully proved; »'
2d. That it be not totally destitute of prooft.
Except in these two cases, the judge must either
admit or reject the demand absolutely and uncondi-
tionally.
1368.
The oath administered officially by the judge to
one of the parties cannot be offered in return by such
party to the other.
1S69.
The oath touching the value of the thing demand-
ed cannot be administered by the judge to the de-
mandant except where it is impossible by other means
to verify such value.
The judge must, even in this case, determine the
sum up to the amount of which the demandant shall
be thereon worthy of credit upon his oath.
TITLE IV.
OF ENOAGEMEKTS WHICH ARE FORMED WITHOUT
CONTRACT.
Decreed the 9th ofFebruartf, 1804. Promulgated the I9th of the
same Month.
1870.
Certain engagements are formed without the in-
tervention of any agreement, either on the part "of
him who is bound thereby, or on his towards whom
he has become bound.
Title IV. --Engagements without Contract. 374
Some result from the simple authority of law.
Others spring from a fact personal to the party who
finds himself bound.
The first are engagements formed involuntarily,
such as those between neighbouring proprietors^ and
those of guardians and other administrators who 'are
not at liberty to refuse the functions cast upon them.
The engagements which spring from a fact per-
sonal to him lyho finds himself bounds result either
from quasi-contracts, or from quasi-crimes. They
form the subject of the pifesent title.
CHAPTER I.
0/ Qiuisi-Contracts.
1371.
Quasi-contracts are the purely voluntary acts of
the party, from which results any engagement what*
soever towards a third person, and sometimes a re-
ciprocal engagement of two parties.
1372.
When a person voluntarily manages the afiairs of
others, whether the proprietor is aware of such ma-
nagement or whether he is ignorant of it, he who so
manages contracts a tacit engagement to continue
the management which he has begun and to complete
it until the proprietor shall be in condition to pro-
vide for it himself; he must himself take the charge
in like manner of all the dependencies of the same
affairs. -
S76 Book III.'— Modes of acquiring Property.
He subjects himself to all the obligations which
would result from an express commission given him
by the proprietor.
187S.
He is compelled to continue his management, not-
withstanding the master may happen to die before
the afikir is completed, until the period at which the
heir is competent to take the direction thereof.
1874.
He is bound to apply in the management of the
afiair all the cares of a good father of a family.
Nevertheless the circumstances which led him to
charge himself with the affair, may authorise the
judge to moderate the damages which would result
from the faults or negligence of the manager.
1875.
The principal whose business has been well ad«
ministered, must fulfil the engagements which the
party who managed it has contracted in his name,
must indemnify him against all personal engagements
which he has undertaken, and reimburse him in all
the useful or necessary expenses which he has been
put to.
1876.
He who receives through mistakeor knowingly that
which is not due to him, is bound to restore it to the
party from whom he has unduly received it.
Title IV. — Engagements without Contract. 877
1377.
When a person through mistake, believing himself
a debtor, discharges a demand, he has a claim for
recovery against the creditor.
Nevertheless such claim ceases in the case where
the creditor has destroyed his tide in consequence
of payments, saving the remedy of the party paying
against the real debtor.
1878.
If there have been bad faith on the part of him
who has received, he is bound to restore, as well
the capital as the interest or the fruits, from the day
of payment.
1879.
If the thing unduly received is an immoveable or
a corporeal moveable, he who has received it is bound
to restore it in kind, if in existence, or its value if it
have perished or become deteriorated by his fault ;
he is even responsible for its loss by accident, if he
have obtained it through bad faith.
1880.
If he who has received bon4 fide has sold the things
he is only bound to refund the produce of such sale*
1381.
He to whom the thing is restored must allow even
to the possessor through bad faith, all the necessary
and useful expenses which have been incurred for its
preservation.
878 Book III. — Modes qf acquiring Property.
CHAPTER IL
0/ Crimes and Quasi-crimes.
1982.
Every action of man whatsoever which occasions
injury to another, binds him through whose fault it
happened to reparation thereof.
1888.
Every one is responsible for the damage of which
he is the cause, not only by his own act, but also.by
his negligence or by his imprudence.
1884.
A person is responsible not only for the injury
\^ich is caused by his own act, but also for that
ni^hich is caused by the act of persons for whom he
is bound to answer, or by things which he has had
under his care.
The father, and the mother after the decease of
her husband, are responsible for the injury caused by
their children being minors and residing with them;
masters and trustees, for the injury caused by their
servants and managers in the functions in which
they have employed them ;
Tutors and artisans for the injury caused by their
pupils and apprentices during the period in which
they are under their superintendence.
The responsibility above mentioned is incurred,
unless the father and mother, tutors and artisans, can
Title IV. — Engagements without Contract. 379
prove that they were not able to prevent the act
which gives rise to such responsibility^
1385.
The owner of an animal, or he who makes use of
it while it is in his employment, is responsible for
the injury which the animal has occasioned, whether
the animal were in his custody, or whether it had
strayed or escaped.
1386.
The proprietor of a building is responsible for the
injury caused by its fall, when it has happened in
consequence of the want of necessary repairs or from
defect in its construction.
TITLE V. .
OF THE CONTRACT OF MARRIAGE AND OF THE RE-
SPECTIVE RIGHTS OF MARRIED PERSONS.
Decreed the lOM of February, 1804. Promulgated the 20ih of the
same Month,
CHAPTER I.
General Regulations.
1387.
The law does not regulate the conjugal association,
as respects property, except in default of special
agreements, which the married parties may make as
they shall judge convenient, provided they are not
contrary to good morals, and, moreover, subject to
the modifications which follow.
380 Book III. — Modes qfacqttiring Property.
1388. *
Married persons cannot derogate from the rights
resulting . from the power of the husband over the
persons of his wife and of his children, or which be-
long to the husband as head, nor from the rights
conferred on the survivor of the married parties by
the title " Of the Paternal P&wer,'* and by the title
" 0/ Minority, Guardianship, and Enumcipationy* nor
from the prohibitory regulations of the present code.
1389.
- They are not allowed to make any agreement or
renunciation, the object of which shall be to change
the legal order of successions, whether with reference
to themselves in the succession of their children or
descendants, or with reference to their children be-
tween themselves; without prejudice to donations
during life or by will, which may take place accord-
ing to the forms and in the cases determined by the
present code.
1390.
The married parties can no longer stipulate in a
general itianner that their union shall be regulated
by one of the customs, laws, or local ordinances
which heretofore governed the different parts of the
French territory, and which are repealed by the pre*
sent code.
1391.
They may nevertheless declare in a general man-
ner that they intend to be married either under the
law of community, or under the law of dowry.
In the first case, and under the law of com-
Titk V.-^Contraet of Marriage, Sgc. 881
munity, the rights of the married parties, and of
their heirs, shall be governed by the regulations of
chapter 2 of the present title.
In the second case, and under the law of dowry,
their rights shall be governed by the regulations of
chapter 3.
1392.
The simple stipulation that the wife settles upon
herself, or that there is settled upon her property in
dowry, does not suffice to subject such property to
law of dowry, if there be not in the marriage con-
tract an express declaration in this respect.
Neither does liability to law of dowry result from
the simple declaration of the married parties, that
they are married without community, or that they
shall be separated as to property.
1393.
In default of special stipulations which derogate
from the law of community or modify it, the rules
established in the first part of chapter 2, shall form
the common law of France.
1394.
All matrimonial agreements shall be reduced to
writing before the marriage, by act before a notary.
1395.
They cannot receive any alteration after the cele-
bration of marriage.
1396.
The changes which shall be made therein before
882 Book III. — Modes of acquiring Properh/.
such celebration must be verified hy act passed in
the same form as the contract of taarriage. '
No change or defeasance moreover is valid with-
out the presence and simultaneous consent of all the
persons who have been parties in the contract of
marriage.
1897.
All changes and defeasances, even invested with
the forms prescribed by the preceding article, shall
be without effect as regards third persons, unless
they have been reduced to writing at the end of the
minute of the contract of marriage : and the notary
is forbidden, on pain of damages to the parties, and
under the greatest penalty if there be ground for it,
to deliver either engrossments or copies of the con-
tract of marriage without transcribing at the end the
change or the defeasance.
1898.
The minor competent to contract marriage is com-
petent to consent to all the agreements of which such
contract is susceptible ; and the agreements and do-
nations which he has made therein are valid, provided
he have been assisted in. the contract by the persons
whose consent is necessary to render such marriage
valid. ^
CHAPTER 11.
Of the Law respecting Cammujuty.
1899.
The community, whether legal or conventional,
commences from the day of the marriage contracted
Title V.^Contract of Marriage, 3^r. JWS
before the officer of the civil power : they cannot
stipulate that it shall commence at another date.
PART I. OF LBCSAL COlffMUNITY.
1400.
The community which is established by the simple
declaration that the parties marry under the law of
community, or in default of contract, is subjected to
the rules explained in the six following sections.
SECTION I;
Of that which cofnposes Community actively and passively,
§ I. Of the active Part of Commnnity.
1401.
Community is composed actively,
Ist. Of all the moveable property which the mar-
ried parties possessed -at the day of the celebration
of the marriage, together with all moveable property
which falls to them during the marriage by title of
succession, or even of donation, if the donor have
not expressed himself to the contrary ;
2d. Of all the fruits, revenues, interests, and arrears,
of what nature soever they may be, fallen due or re-
ceived during the marriage, and arising from pro-
perty which, belonged to the married persons at the
time of the celebration, or from such as has fallen to
them during the marriage, by any title whatsoever;
3d. Of all the immoveables which are acquired
during the marriage.
S84 Book IIL'^Modes of acquiring Property.
1402.
Every immoveable is reputed to have been ac-
quired in community, unless it be proved that one
of the marned parties bad the property or legal pos-
session thereof at a period anterior to the marriage,
or that it has fallen to such party since by title of
succession or donation.
1403.
Cuttings of wood and the productions of quarries
and mines fall under community as regards all which
can be considered as usufruct, according to the rules
explained under the title ** Qf Ustffruct, Right of
Common and Habitation.**
If the cuttings of wood which, according to those
rules, might have been made during community,
have not been so, recompense shall therefore be
payable to the married party not being proprietor
of the estate, or to his heirs.
If the quarries and mines have been opened du-
ring the marriage, the produce thereof only falls un-
der community saving a compensation or indemnity
to the married party who has claim thereto.
1404.
The immoveables which married persons possess
on the day of the celebration of marriage, or which
fall to them during its continuance by title of suc-
cession, 4o not enter into community.
Nevertheless, if one of the married persons have
acquired an immoveable subsequently to the contract
Title v.— Contract of Marriage, S;c. 386
of marriage containing condition of community,
but before the celebration of the marriage, the im-
moveable acquired in such interval shall enter into
community^ unless the acquisition have been made
in the execution of some article of marriage ; in
which case it shall be regulated according to the
agreement
1405.
Donations of immoveables which are made during
marriage to one only of the married parties, do not
fall into community, but belong to the donee only,
unless the donation expressly declare that the thing
given shall belong to both in community.
1406.
An immoveable abandoned or ceded by the father,
mother, or other ancestor, to one of the two married
parties, either to satisfy what shall be owing to such
party, or on condition of paying debts due from the
donor to strangers, does not enter into community,
saving compensation or indemnity.
1407.
An immoveable acquired during marriage, by title
of exchange for an immoveable belonging to one of
the two married parties, does not enter into com-
munity ; but is substituted instead and in place of
that which was alienated, saving recompense, if there
be any difference of value.
c c
386 Bdok III. — Modes of acquiring Property.
1408.
The acquisition made duriDg the marriage, by
title of auction or otherwise, of the portion of an
immoveable, of which one ofthe married parties was
proprietor in coparcenary, does not constitute a pur-
chase ; saving indemnity to the community for ih6
sum which it has supplied for such acquisition.
In the case where the husband shall become, alone
and in his own proper name, purchaser or highest
bidder for a portion or the entirety of an immoveable
belonging in coparcenary to his wife, the latter, at
the dissolution of the community, has the election
either to abandon the object to the community,
which thereupon becomes debtor to the wife in the
price of the portion which belonged to her, or to
withdraw the immoveable, reimbursing to the com-
munity the price of its acquisition^
( II. Of the pai8ive Part of Community, and of Actions which
result therefrom against the Community.
1409-
Comniunity is composed passively,
1st. Of all personal debts with which the married
parties were encumbered on the day ofthe celebration
of their marriage, or with which those successions
were charged which fell to them during the marriage,
saving compensation for those relating to immove-
ables proper to one or other of the married parties ;
2d. Of debts^ as well in capital sums as in arrears
or interest, contracted by the husband during the
Title V.--Contract of Marriage, S^. 387
community, or by the wife with her husband's con-
sent, saving compensation in cases where there is
ground for it ;
3d. Of those arrears and interest only of rents or
debts due to others which are personal to the two
married parties ;
4th. Of usufructuary repairs of immoveables which
do not enter into community ;
5th. Of alimony of married persons, of the educa«*
tion and maintenance of children, and of every other
charge of marriage.
1410.
Community is not maintained with respect to per*
sonal debts contracted by the wife before marriage,
except so far as they result from an authentic act
anterior to marriage, or as they have received before
that event a certain date, either by enrolment, or by
the decease of one or more of those who signed the
said act.
The creditor of the wife cannot, by virtue of an
act which has not received a certain date before the
marriage, sue for the payment of his debt against
her, except on the bare property of her personal im-
moveables.
The husband, who has undertaken to pay for his
wife a debt of this nature^ cannot demand compen-
sation therefore either of his wife or of her heirs.
1411.
The debts of successions purely moveable, which
c c 2
S8B Book III. — Modes qf acquiring Property.
]iave fallen to married persons during the marriagep
are entirely at the charge of the community.
141S.
The debts of a succession purely immoveable
which falls to one of the married parties during the
marriage, are not at the charge of the community ;
saving the right which the creditors have to sue for
their payment out of the immoveables of the said
succession.
Nevertheless, if the succession have fallen to the
husband, the creditors of the succession may sue for
their payment, either out of all the property peculiar
to the husband, or even out of that of the com-
munity ; saving in the second case, the compensa-
tion due to the wife, or to her heirs.
1413.
If a succession purely immoveable have fallen to
the wife, and the latter have accepted it with the
consent of her husband, the creditors of the suc-
cession may sue for their payment out of all the
wife's personal property } but if the succession have
only been accepted by the wife with the authority of
the law on her husband's refusal, the creditors, in
case of deficiency in the immoveables of the suc-
cession, can only obtain relief out of the wife's bare
property in other personal goods.
1414.
When a succession fallen to one of the married
Title v.— Contract qf Marriage, Sfc. 389
persons is partly moveable and partly immoveable,
the debts with which it is incumbered are not at the
charge of the community, except to the amount of
the rateable proportion of personalty in such debts,
regard being had to the value of such moveables
compared with that of the immoveables.
Such rateable portion is r^ulated by the inventory
to which the husband must cause them to proceed,
either in his own right, if the succession concern
him personally, or as directing and authorising the
actions of his wife, if the question relate to a suc-
cession fallen to her*
1415.
In default of the inventory, and in all cases where
such default prejudices the wife, she or her heir^
may, at the dissolution of the community, sue for
compensation of right, and even make proof as well
by private documents and papers as by witnesses,
and in case of necessity by common rumour, of the
existence and value of the personalty not inven-
toried.
The husband is never admissible to make such
proof.
1416.
The regulations of article 1414 do not form any
obstacle to the creditors of a succession partly move*
able and partly immoveable suing for payment out
of the property of the community, whether the suc-
cession have fallen to the husband, or whether it
h^ve j&dlen to the wife, when the latter has accepted
S90I Book III.-^Modes of acquiring Property.
it with the consent of her husband ; the whole saving
the respective compensations.
The same rule applies where the succession has
only been accepted by the wife as authorised by the
law, and though the moveables thereof have never-
theless been confounded with tliose of the community
without a previous inventory.
1417.
If the succession have only been accepted by the
wife as authorised by the law on the refusal of her
husband, and if there have been an inventory, the
creditors can only sue for payment out of the pro-
perty as well moveable as immoveable of the said
succession, and in case of insufficiency^ on the bare
property of the wife in the other personal goods.
1418.
The rules established by article 1411 and those
following govern debts dependent upon a donation,
as well as those resulting from a succession.
1419.
Creditors may sue for the payment of debts con-
tracted by the wife with her husband's consent, as
well out of the whole property of the community as
out of that of the husband or wife ; saving compen-
sation due to the community, or indemnity due to
the husband.
1420.
Every debt which is contracted by the wife in
Tilk V. — Contract of Marriage^ Sfc. S91
virtue only of the general or special procuration of
her husband, is at the charge of the community ;
and the creditor cannot sue for the payment thereof
either against the wife or against her personal, pro*
perty.
SECTION IL
Of the AdminUtration of the CommunUy, and of the Effect of the
Acts of either of the married Parties relating to the
conjugal Union,
1421.
The husband alone administers the property of
the community.
He may sell it, alienate and pledge it without the
concurrence of his wife.
1422.
He cannot make disposition during life by gratu-
itous title of the immoveables of the community, nor
of the entirety or a proportion of the moveables, ex«*
cept for the establishment of their common children.
He may nevertheless dispose of moveable effects
by gratuitous and particular title, for the benefit of
any persons, provided he do not reserve to himself
the usufruct thereof.
1423.
A testamentary donation made by the husband
must not exceed his portion in the community.
If he have given in this form any article of the
community, the donee cannot claim it in kind, ex-
9d$ Book IIIr^Modes of acquiring Property.
ce|>t so far as such article by the event of distribu*
tion fail to the lot of the hrirs of the husband ; if tiie
article do not fall to the lot of such heirs, the legatee
has his recompense for the total value of the article
given, out of the portion of the heirs of the husband
in the community and out of the personal property
of the latter.
1424.
Fines incurred by the husband for a crime not im-
porting civil death, may be sued for out of the pro-
perty of the community, saving the compensation
due to the wife ; such as are incurred by the wife
cannot be put in execution except out of her bare
property in her personal goods, so long as the com*-
munity continues.
1425.
Sentences pronounced against one of the married
parties for crime importing civil death, afiect only
such party's portion in the community, and his or
her personal property.
1426.
Acts done by the wife without her husband's con*
sent and even with the authority of the law, do not
bind the property of the community, except when
she contracts as a public trader and for the purposes
of her traffic.
1427.
The wife cannot bind herself nor engage the pro*
perty of the community, even to free her husband
from prison, or for the establishment of their chil-*
Tilie F- — Contract of Marriage^ Sgc. S9S
dren in case of her husband's absence, until she shall
have been thereto authorised by the law.
1428.
The husband has the management of all the per-
sonal property of the wife.
He may prosecute alone all possessory actions and
those relating to moveables, which belong to his
wife.
He cannot alienate the personal immoveables of
his wife without her consent.
He is responsible for all waste in the personal
goods of his wife, occasioned by the neglect of con*
servatory acts.
1429.
Leases which the husband has made alone of the
property of his wife for a time which exceeds nine
years, are not, in case of the dissolution of the com*
munity, obligatory against the wife or her heirs,. ex<^
cept for the time which has still to run either of the
first period ofnine years, if the parties are still within
it, or of the second, and so in succession, in such
manner that the farmer shall only have a right to
complete his enjoyment for that period ofnine years
which may be in progress.
14S0.
Leases of his wife's property, which the husband
has made or renewed alone for nine years or under,
more than three years before the expiration of the
current lease, if it relate to rural property, and more
•394 Book IIL^^Modes (^acquiring Property.
than two years before the same period if houses be
in question, are void, unless their execution have
commenced before the dissolution of the community.
•
1481.
The wife who becomes bound jointly and severally
with her husband in respect of affairs* in the com-
munity, or of her husband, is not deemed bound
with regard to the latter, except as security ; she
may be indemnified against the obligation which she
has contracted.
1482.
The husband who guarantees jointly and severally,
or otherwise the sale which his wife has made of a
personal immoveable, has in like manner a remedy
against her, either out of her portion in the com-
munity, or out of her personal goods, if he be
troubled thereon.
1483.
If ah immoveable belonging to one of the married
parties be sold, as also if redemption be made in
money of manorial services claimable from estates
peculiar to one of them, and the price thereof be
paid into the community, and all without compensa-
tion, there is ground for deduction of the price from
the community, for the benefit of the married party
who was proprietor, either of the immoveable sold,
or of the services redeemed.
Title V. — Contracts of Marmage^ S^c. S&S
1434.
'. Compensation is deemed to have been made with
respect to the husband whenever at the period of a
purchase he has declared that it was made with
money arising from the alienation of an immoveable
which was personal to himself, and to be in lieu of
compensation.
I486.
The declaration of the husband that the acquisi-
tion is made with money arising from an immoveable
sold by the wife, and as regards her to serve instead
of compensation, is pot sufficient, if such compensa-
tion have not been formally accepted by the wife :
if she have not accepted it, she has simply the rights
at the dissolution of the community, to reimburs^e-
ment of the price of her immoveable sold.
14S6.
- Recompense for the price of an immoveable be*
longing to the husband can only be claimed out of
the mass of the community : that for the price of the
immoveable belonging to the wife is claimable out
of the personal goods of the husband, in case of in«
sufficiency in the goods of the community. In all
cases, the compensation only takes place on the
footing of the sale, whatever allegation may be made
touching the value of the immoveable alienated.
1437.
As often as a sum is withdrawn from the com«
996 Book III. — Afoda of acquiring Property.
munityi whether to discharge debts or encumbrances
perscNtial to one of tlie married parties, such as the
price or part df the price of an immoveable peculiar
to such party, or the redemption of manorial ser-
vices, or for the recovery, preservation, or improve-
ment of their personal property, and generally when-
ever one of the married parties has derived a per-
sonal profit from the goods of the community, a
compensation is therefore due.
1488.
If the father and mother have conjointly endowed
their common child without expressing the propor*
tion in which they intended to contribute thereto,
they are deemed to have endowed it each in a moi«
ety, whether the dowry have been paid or promised
in. the effects of the community, or whether it have
been so in goods personal to one oi the two married
parties.
In the second case, the married party whose ira^-
moveable or personal effects have been settled as
dowry, has an action for indemnity in a moiety of
the said dowry, against the goods of the other;
regard being had to the value of the article given at
the time of the donation.
1439*
A dowry settled by the husband alone on a oom>-
mon child, in the effects of the community, is at the
charge of the community ; and in the case in which
community is' accepted by the wife, the latter may
Title V.^Contract of Marriage^ S^c. 897
contribute a moiety of the dowry, unless the bus*
bund have expressly declared that he charged him'*
ftdf with the whole thereof, or with a portion greater
than a moiety.
1440.
Warranty of dower is due from every person who
haa settled it; and interest thereon runs from the
day of marriage, even though there be a fixed time
for payment, unless there be a stipulation to the con-
trary.
SECTION III.
Of ike DtMSoiutum of Community and ofaome qfUs Consequences*
1441.
Community is dissolved, 1st by natural death;
Sd by civil death \ 3d by divorce ; 4th by separation
of body ; 5th by separation of goo^.
-^1448.
The want of an inventory after the natural or civil
death of one of the married parties, does not give
rise to a continuation of Community: saving the
prosecations of parties interested^ relatively to the
condition of goods and effects in community of which
the proof may be made as well by document as by
common rumour.
If there be children under age, the want of inven-
tory causes in addition a loss to the surviving married
party of the enjoyment of their revenues ; and the
898 Book IIL — Modes qf acquiring Property.
supplementary guardian who shall not have compelled
such party to make inventory, is bound jointly and
severally with the party by all sentences which may
be pronounced for the benefit of minors.
1448.
Separation of goods can only be sued for in court
by the wife whose dowry is put in peril, and when
the disorder of the husband's affitirs gives room to
fear that the goods of the latter will not be sufficient
to satisfy the prior claims and demands of the wife.
Every voluntary separation is null.
1444.
The separation of property, though pronounced in
court, is null, unless it have been executed by the
actual payment of the claims and demands of the
wife, effisctuated by authentic act, up to the amount
of the husband's goods, or at least by prosecutions
commenced within the fortnight following the judg-
ment, and not interrupted since.
1445.
Every separation of goods must, before its execu-
tion be made public by a notice upon a list destined
to this purpose, in the principal hall of the court of
first instance, and further, if the husband be a mer-
chant, banker, or tradesman, in that of the court of
commerce at the place of his domicile ; and this on
pain of nullity of the execution*
The judgment pronouncing separation of goods,
Titk v.— Contract of Marriage, <^c. S99
has relation backward, as to its effects, to the day of
the petition.
1446.'
The personal creditors of the wife cannot, without
her consent, demand separation of goods.
Nevertheless, in case of bankruptcy or embarrass-
ment of the husband, they may avail themselves of
the claims of their debtor up to the amount of their
debts.
1447.
The creditors of the husband may obtain redress
against the separation of property pronounced and
even executed in fraud of their rights j they may
even interpose in the suit on the petition for separa*
tion in order to contest it.
1448.
The wife who has obtained separation of goods,
must contribute, in proportion to her means and
those of her husband, as well to the charges of the
household as to those of the education of their com-
mon children.
She must entirely sustidn those charges, if nothing
renudn to the husband.
1449.
The wife separated either in body and goods, or in
goods only, regains the uncontroled government
thereof.
She may dispose of her moveables, and alienate
them. She cannot alienate her immoveables without
400 Book IIL-^Modes of acquiristg Property.
the consent of her husband, or without being thereto
authorised by the court on his refusal.
1450.
The husband is not responsible for any failure in
the employment or re-employment of the price of an
immoveable which the wife after separation has alien-
ated under the authority of the court, unless he
have concurred in the contract, or unless it be proved
that the money has been received by him, or has
been turned to his advantage.
He is responsible for failure in its employment or
re*employment if the sale have been made in hit
presence and with his consent; he is not so with
regard to the utility of such employment.
1461.
Community dissolved either by separation of body
and goods, or of goods only, may be re-established
with the consent of both parties.
This can only be done by an act before notaries
and with a minute, of which a copy must be hung
up in the form of article 1445.
In this case community re-established resumes its
operation firom the day of marriage ; affairs return
to the same state as though there had been no sepa-
ration, without prejudice nevertheless to the execu-
ttoB of acts which, during such interval, may have
been made by the wife in conformity with tfticle
1449.
Every agreement by which the married parties
Titk v.— Contract of Marriage, S^c. 401
would re-establish their community under conditions
different from those which r^ulated it previously,
is null.
1453.
The dissolution of community operated by divorce
or by separation either of body and goods, pr of
goods only, does not give origin to claims of survivor-
ship by the wife ; but the latter retains the power of
exercising them at the civil or natural death of her
husbands
SECTION IV.
Of the Acceptance of Community ^ and of the RenuneUtian tohkh
may be made thereof, vsith the Conditions relating thereto.
1453.
After the dissolution of community, the wife or her
heirs and assigns have the power of accepting or re-
nouncing it Every agreement to the contrary is
nulL
1454.
The wife who has intermeddled in the goods of
the community, cannot afterwards renounce.
Acts purely administrative or conservatory do not
imply intermeddling.
1455.
A wife of age who has admitted in an act the ex-
istence of community, is no longer at liberty to re-
nounce, or relievable against the character she has
assumed, although she have made such admission
DD
t
40S Book IIL— 'Modes qf acquiring Property.
before the forming an inventory, provided there be
no fraud on the part of her husband s heirs.
1456.
The surviving wife who is desirous oi retaining
the power of renouncing community, must, within
three months from the day of her husband's decease,
cause an exact and faithful inventory to be made of
all the goods of the community, in the presence of
the heirs of the husband, or after having duly sum-
moned them.
Such inventory must be by her affirmed to be just
and veritable, at the time of its closure, before the
public officer who took it.
1457.
Within three months and forty days after the de-
cease of the husband, she must make her renunciation
at the regi9try of the court of first instance in the
circle in which the husband had his domicile ; this
act must be enrolled on the register established for
the reception of renunciations of succession.
1458.
The widow may, according to circumstances^ de-
mand of the civil court an extension of the interval
prescribed by the preceding article for her renuncia-
tion; such extension is, if there be ground, pro-
nounced in presence of the heirs of the husband, or
after they have been duly summoned.
Title y.— Contract of Marriage^ SfC. 40S
1459.
The widow who has not made her renunciation
within the interval above prescribed, is not deprived
of the power of renouncing if she have not inter-
meddled and if she have formed an inventory ; she
can only be sued as in community until she have re<*
nouncedy and she is liable to charges incurred against
her up to her renunciation.
She may equally be sued afler the expiration of
the forty days from the closing of the inventory, if
it have been closed within the three months.
1460.
The widow who has converted or concealed any of
the effects of the community, is declared subject
thereto, notwithstanding her renunciation : it is tlie
same with regard to her heirs.
1461.
If the widow die before the expiration of the three
months without having made or completed the in-
ventory, the heirs shall, for the purpose of making
or completing the inventory, have a new interval of
three months, to be computed from the decease of
the widow, and of forty days for deliberation after
the closing of the inventory.
If the widow die after the termination of the in- '
ventory, her heirs shall have a fresh interval of forty
days for deliberation, to be computed from her de-
cease.
They may moreover renounce community in the
D d8
44M Book IIL^^Modes qf acquiring Property.
forms established above ( and articles 1458 and 1469
are applicable to them.
1462.
. The regulations of articles 1456 and those follow*
ing are applicable to the wives of individuals civilly
deady commencing from the moment at which civil
death took place.
1468.
The wife divorced or separated in body, who has
not within three months and forty days afler the
divorce or separation definitively pronounced, ac-
cepted community, is deemed to have renounced it,
unless, while yet within the interval, she has obtained
an extension from the court, in her husband's pre-
sence, or after having daily summoned him.
1464.
The creditors of the wife may impeach renuncia*
tion which shall have been made by her or by her
heirs in fraud of their demands, and accept commu-
nity in their own right.
1465.
The widow, whether she accept, or whether she
renounce, has a right during the three months and
forty days which are allowed her to form the inven-
tory and to deliberate, to take for her own sustenance
and that of her domestics from the provisions which
remain, and in default thereof to borrow on account
of the common stock, on condition of making mode-
rate use thereof.
Title V.'^antract of Marriage^ 4r. 405
She is not liable to any rent by reason of her re-
sidence, during such intervals, in a house dependent
on the community or belonging to the heirs of her
husband ; and if the house which the married parties
occupied at the period of the di9Solution of the com-
munity, was held by them subject to rent, the wife
shall not contribute, during the same intervals, to the
payment of the said rent, but it shall be deducted
from the mass.
1466.
In the case ofdissolutionof community by the death
of the wife, her heirs may renounce the community
within the intervals and in the forms which the law
prescribes to the surviving wife.
SECTION V.
Of the DUtribuiion of the CommunUy after Acceptance^
1467.
After the acceptance of community by the wife
m; her heirs; the active is cfistributed and the passive
is sustained in the manner hereinafter determined.
( I. Of the Partitio|i of ^he Active.
1468.
The fliarried p^rsoAs or their heirs bring into the
mass of existing goods every thing in which they are
debtors to the community by title of compensation
or indemnity, according to the rules above pre-
scribed, in section 2 of the first part of the present
chapter.
406 Boole III^— Modes qfacqmring Property.
1469-
Every married person or the heir brings in in like
manner the sums which have been drawn from the
community, or the value of the property which the
married party may have taken therefrom to endow a
child by another bed, or to endow personally a ccmi-
mon child.
1470.
From the mass of property, each mari*ied person
or the heir deducts,
1st. Personal goods which have not entered into
community if they exist in kind, or those which
have been acquired in compensation ;
8d. The price of immoveables which have been
alienated during the community, and for which com«
pensation has not been made }
8d* Indemnities due to such party from the com-
munity.
1471.
The shares of the wife take precedence of those of
her husband.
This right is exercised in respect of goods which
no longer exist in kind, first out of ready money,
next out of moveable property, and subsidiarily out
of the immoveables of the community ; in the last
case, the election of the immoveables is yielded to
the wife and to her heirs.
1472.
The husband cannot exercise his claims except
out of the goods of the community.
Title V. — Controjci (f Marriage^ Sgc. 407
The wife and her heirs are entitled, in case of in-
- sufficiency in the community, to exercise their claims
out of the personal goods of the husband.
1478.
The repayments and compensatipns due from the
community to the married parties, and the compensa-
tions and indemnities due from them to the commu-
nity, carry interest absolutely from the day of the
dissolution of the community.
1474.
After all the deductions of the two married parties
from the mass have been completed, the residue is
distributed in moieties between the parties or their
representatives.
1475.
If t^e heirs df the wife are divided, so that one
has accepted the community which the other has re-
nounced, he who has accepted can only take his
personal and hereditary share in the property which
fell to the lot of the wife.
The residue remains with the husband, who is
charged towards the heir renouncing, with the claims
which the wife would have been permitted to exer-
cise in case of renunciation, but up to the amount
only of the personal hereditary share of the party re-
nouncing.
1476.
Further, the partition of the community, as to all
which concerns its forms, the auction of the im-
4M Book III.'— Modes ofacpdring Properhf.
moveables when there is ground for it, the effects of
the partition, the warranty which results therefronii
and the balance, are submitted to the rules which are
established under the title *' QfSuccesshns^*^ for dis-
tributions among heirs.
1477.
Such of the married parties as shall have converted
or concealed any effects of the community, is de-
prived of a portion in the said effects.
1478.
After partition consummated, if one of the married
parties is the creditor of the other, as when the price
oi the property of one has been employed in paying
the personal debt of the other, or through any
other means, such party exercises his claim over
the property in the community which has fallen
to the latter, or over the personal property of the
latter.
1479.
Personal credits which married persons have to put
in force against each other, do not carry interest ex-
cept from the day of demand in court.
1480.
Donations which one of the married parties may
have made to the other, are executed only out of the
portion of the donor in the community, or out of bis
personal property.
Titk V.—Cmtract of Marriage^ ^. 40»
1481.
The mourning of the wife is at the charge of the
heirs of her husband previously deceased.
The value of such mourning is regulated by the
fortune of the husband.
It is claimable even by a wife who renounces com-
munity.
§ II. Of the Passive in the CommiHiity, and of Contribution to Debts.
1482.
The debts of the community are to the amount of
a moiety at the charge of each of the married par-
ties or of their heirs : the expenses of sealing, inven-
tory, sale of moveables, liquidation, auction and par-
tition form part of such debts.
1483.
The wife is not bound for the debts of the com-
munity ^ther with respect to her husband or with
respect to creditors, except to the amount of her
emolument, provided that there have been a good
and faithful inventory, and provided she render ac-
count as well of the contents of such inventory as of
that which has fallen to her in the partition.
1484.
The husband is bound for the whole of the debts
of the community contracted by him, saving his re-
medy against bis wife or her heirs for a moiety of
such debts.
410 Book III. — Modes of acquiring Property.
1485.
He IS not bound beyond a moiety, for those per-
sonal to his wife and which fell to the charge of the
community.
1486.
The wife may be sued for the whole of the debts
which accrued in her own right and which entered
into the communityi saving her remedy against
her husband or his heir, for a moiety of the said
debts.
1487.
The wife even personally bound for a debt of the
community, cannot be sued for more than a moiety
of such debt, unless the obligation be joint and
several.
1488.
The wife who has paid a debt of the community
beyond her moiety has no riglit to recover against
the creditor the excess, unless the acquittance ex-
press that what she has paid was for her moiety.
1489.
The one of two married persons who, by the effect
of a mortgage executed upon an immoveable which
has fallen to him by partition, finds himself sued for
the wh(de of a debt of the community, has of right
his remedy for a moiety of such debt against the
other married party or her heirs.
Titk V. — Contract of Marriage^ S^c. 411
1490.
llie preceding regulations form no impediment to
this ; that by the partition, either of the coparceners
should be charged with the payment of a proportion
of the debts other than the moiety, even with dis-
charging them entirely.
As often as one of the coparceners has paid the
debts of the community beyond the portion in which
he was bound, there is ground for a remedy for him
who has paid too much against the other.
♦
1491.
All which has been said above with regard to the
husband or the wife, applies with regard to the heirs
of either ; and such heirs exercise the same rights
and are subject to the same actions as the married
party whom they represent.
SECTION Vl.
Of the Renunciation of ConmmnUy and of its Effects.
1492.
The wife who renounces forfeits every description
of claim upon the goods of the community^ and even
upon the moveables which have become part thereof
in- her right.
She retains only linen and clothes for her own use.
1493.
The wife who renounces has a right to resume.
41 a Book III.— Modes of acquiring Property.
IsL Hie immoveables belonging to her when they
exist in kindi or the immoveable which has been
acquired by compensation ;
8d. The price of her immoveables alienated for
which compensation has not been made and accepted,
as is mentioned above ;
Sd. All indemnities which may be due to her from
the community.
1494.
The wife renouncing is discharged from all contri-
bution to the debts of the community as well with
regard to the husband as with regard to creditors.
She nevertheless remains bound towards the latter,
when she is under obligation conjointly with her
husband, or when the debt, become a debt of the
community, accrued originally in her right; the
whole saving a remedy against the husband or his
beirs.
1495.
She may exercise all actions and previous demands
above detailed, as well against the goods of the com-
munity as against the personal goods of her husband.
Her heirs may do the same^ saving in what relates
to deduction of linen and clothes, as well as lodging
and sustenance during the interval given for making
the inventory and for deliberating ; which rights afe
purely personal to the wife surviving.
Title V.'^^^Omtract of Marriage, Sfc. 41*
Regulation relative to legal Community, when one of the married
. Parties or both of them have Children of previous Marriages.
1496.
All which has been said above shall be observed
even when one of the married parties or both of them
shall have children by precedent marriages.
If however the intermixture of the personalty and
of the debts operate, for the benefit of one of the
married parties, an advantage superior to that which
is authorised by article 1098 under the title '* Of
donations during l^e, andqfwilht'' the children of the
first bed of the other married party shall have an
action for compensation.
lABT II. OP OOOTBNTIOHAL COMMITNITT, ANl^ OF ▲ORBBlfKlfT*
WHICH MAT MODirv AND SYBN BZCLUDB LEGAL COMMUVITT*
1497.
Married persons may modify legal community by
every description of agreements not contrary to arti-
cles 1S87, 1388, 1889, and 1890.
The principal modifications are those which take
place in stipulating in one or other of the modes fol-
lowing ; that is to say,
1st. That the community shall only embrace pur*
chases;
'2d. That the present or future moveables shall
not form part of the community, or shall only form
part of it for one party ;
Sd. That the whole or part of the present or future
immoveables shall be comprehended therein, by
making them moveable ;
414 Book IIL — Modes qfacqtdring Property.
4th. That the married parties shall pay separately
their debts anterior to marriage }
5th. That in cases of renunciation, the wife may
resume her contributions free and unencumbered ;
6th. That the survivor shall have a reversion ;
7th. That the married parties shall have unequal
shares ;
8th. That there shall be between them community
by general title.
SECTION I.
OfCommumty confined to Properltf acquired.
1498.
When married persons stipulate that there shall be
a community between them of acquisitions only,
they are deemed to exclude from community both
the debts of each of them existing and future^ and
their respective moveables present and future.
In this case, and after that each of the married
persons has deducted the contributions, duly proved,
the partition is limited to acquisitions made by the
married persons together or separately •during the
marriage, and arising as well from their common in-
dustry as from the savings out of the fruits and
revenues of the property of both the married persons.
1499.
If the moveable property existing at the time of
the marriage, or fallen since, have not been proved
by inventory or statement in correct form, it is re-
puted acquired.
Title V. — Contract of Marriage j S^v. 415
SECTION II.
Of the Clause which excludes from the Community the moveable
Property in ffliole or in Part.
1500,
The married parties may exclude from their com-
munity all their moveable property present and
future.
When they stipulate that they will thereout mu-
tually contribute to the amount of a sum or value
determinate, they are by that alone deemed to have
reserved the surplus.
1501.
This article renders the married party debtor to
the community in the sum promised to be brought in,
and obliges such party to prove such contributions.
•
1502.
The contribution is sufficiently proved as regards
the husband, by the declaration contained in the
marriage contract, that his moveable property is of
such value.
It is sufficiently proved with regard to the wife,
by the acquittance which the husband gives her, or
those who have endowed her.
1503.
Every married person has the right to resume and
take up, at the time of dissolving the community, the
416 Book IIL-^Modes of acquiring Properfy.
value of that in which the moveable property brought
in by him at the time of the marriage, or which has
fallen to him since, exceeded his contribution to the
community.
1504.
The moveable property which falls to each of the
married parties during the marriage, must be veri-
fied by an inventory.
In default of such inventory of moveable property
fallen to the husband, or of a title proper to justify
its existence and value, deduction being made of
debts, the husband cannot exercise his previous
claim thereon.
If the default of inventory reach to moveables
fallen to the wife, the latter or her heirs are ad-
mitted to make proof, either by documents or by
witnesses, or even by common rumour, of the value
of such moveables.
SECTION III.
Of the Clause making moveable,
1505.
When the married parties or one of them cause
the whole or a portion of their immoveables present
or future to form part of the community, such clause
is called '' making moveable.*'
1506.
The act of making moveable may be determinate
or indeterminate.
Title V. — Contract of Marriage, Sgc. 417
It is determinate when the married party has
declared that such an immoveable is rendered move-
able and added to the community^ wholly or up to
the amount of a given sum.
It is indeterminate when the married party has
simply declared that the immoveables are brought
into community up to the amount of a certain sum.
1507.
llie e£Pects of determinately making moveable is
to render the immoveable or the immoveables which
are affected thereby, goods of the community even
as moveables.
When the immoveable or immoveables of the wife
are wholly rendered moveable, the husband may
dispose thereof as of the other goods of the commu-
nity and alienate them entirely.
If the immoveable is only rendered moveable for
a certain sum, the husband cannot alienate it but
with the consent of his wife j but he may pledge it
without her consent, to the amount only of the por-
tion rendered moveable.
1508.
The act of making moveable indeterminately does
not render the community proprietor of immoveables
which are affected thereby ; its effect is limited to
obliging the married party, who has consented to it,
to include within the mass, at the time of dissolving
the community, some of the immoveables of such
party up to the amount promised.
£ £
418 Booh III. — Modes ofacqmring Property.
The husband cannot, as in the preceding article,
alienate in whole or in part, without the consent of
his wife, the immoveables which have been rendered
moveable indeterminately ; but he may pledge them
up to the amount to which they have been made
moveable,
1509.
The married party who has rendered an estate
moveable, has, at the time of partition, the power of
retaining it, on making a deduction from his portion
of its then value; and his heirs have the same right.
SECTION IV.
Of the Article of Separation ofDehU*
1510.
The article by which married persons stipulate
that they will separately pay their personal debts,
compels them, at the dissolution of the community,
to render to each other mutual accounts of the debts
which are proved to have been paid by the com-
munity in discharge of such of the married parties
as was debtor therein.
This obligation remains the same, whether there
have been an inventory or not : but if the moveable
property contributed by the married parties have
not been verified by an inventory or authentic state-
ment anterior to marriage, the creditors of both the
married parties may, without having regard to any
of the distinctions which shall be claimed, sue for
Title V.^-^^ntract of Marriage^ S;c. 419
payment out of the moveable property not contained
in the inventory, as well as out of all the other goods
of the community.
The creditors have the same right over the move-
able property which shall have fallen to the married
parties during community, unless it have been like-
wise verified by an inventory or authentic statement.
1511.
When married persons bring into the community
a sum certain, or a certain property, such a contri-
bution carries with it a tacit agreement that it is not
burdened with debts anterior to marriage ; and an
account must be rendered by the married party who
has debts to the other, of all those which will dimi-
nish the contribution promised.
1512.
The article of separation of debts does not pre-
vent the community from being charged with in-
terest and arrears which have accrued subsequently
to marriage.
1518.
When the community is sued for debts of one of
the married parties, declared by the contract free
and unburthened with any debts anterior to the
marriage, the other party has a right to an indem-
nity operating either upon that portion in the com«
munity which would revert to the married party
debtor, or upon the personal goods of the said party;
E£ 2
420 Book IIL^^Modes (^acquiring Property.
and in case of insufficiency, such indemnity may ber
prosecuted by way of warranty against the father,
mother^ ancestor or guardian who shall have de-
clared such party free and unburthened.
This warranty may even be exercised by the husr-
band during the community, if the debt accrue on
the part of the wife ; saving in such case compensa-
tion due from the wife or her heirs to the warrantors^
after the dissolution of the community.
SECTION V.
Of the Power granted to Ae Wife qfreiuming her ConiribiUionJrer
and ^mencumbered,
1514.
The wife may stipulate that in case of renuncia-
tion of the community, she shall resume the whole
or part of what she shall have contributed thereto,
either at the time of the marriage, or since; but this
stipulation cannot be extended beyond things forai-
ally expressed, nor for the benefit of persons other
than those designated.
Thus the power of resuming the moveables which
the wife contributed at the time of the marriage
does not extend to those which fell during the mar-
riage.
So also this power allowed to the wife does not
extend to children ; the same allowed to the wife
and children does not extend to heirs ascending or
collateral.
In Ho case can the contributions be resumed
Title V. — Contract of Marriage^ S^c. 421
without deduction made of debts personal to the
wife, and which the community shall have dis-
charged.
SECTION VI.
Of conventional Reversion {Preciput).
1515.
The article by which the married party surviving
is authorised to deduct and retain, before any parti-
tion, a certain sum or a certam quantity of moveable
effects in kind, does not confer a right to the benefit
of such deduction on the surviving wife, only when
she accepted community, unless the contract of mar-
riage have reserved to her such right even on re-
nunciation thereof.
Except in case of such reservation, reversion is
only exercised over the distributable mass, and not
ever the personal property of the married party pre-
viously deceased-
1516.
Reversion is not regarded as an advantage subject
to the formalities of donations, but as a covenant of
marriage.
1517.
Natural or civU death gives opening to reversion.
1518.
When the dissolution of the community is effected
by divorce or by separation of body, there is no
ground for the actual delivery of the reversionary
482 Book IIL^Modes qf acquiring Property.
property ; but the married party who has obtained
either divorce or separation of body retains rever-
sionary rights in case of survivorship. If it be the
wife, the sum or the thing which constitutes her
jointure remains always with the husband provision-
ally, on conditiop of giving security.
1519.
The creditors of the community have always the
right to effect a sale of the property comprised in the
reversion, saving the semedy of the married party,
conformably to article 1S15.
SECTION VII.
Of the Artide$hyvaMch unequal Portions in the Community/ art as^
signed to either qfthe Married Parties,
15S0.
Married persons may depart from the equal par«
tition established by the law, either by only giving
the survivor or the heirs of such survivor a portion
in the community less than a moiety, or by giving the
survivor a fixed sum in lieu of every claim upon the
community, or by stipulating that the entire com*
munity shall, in certain cases^ belong to the survivor
or to one of the parties only.
15&1*
Where it has been stipulated that a married person
or his heirs shall have only a certain portion in the
commuqityt as a third or a fourth, the party thus
Titk V. — Contract of Marriage ^ SfC. 423
limited or his heirs shall not be liable to the debts of
the community, except proportionably to the share
they take in the active.
The agreement is null if it binds the party thus
limited or his heirs to sustain a larger share, or if it
exonerate them from sustaining a share in the debts
equal to that which they take in the active.
1522.
Where it is stipulated that one of the married
parties or the heirs of such party shall not claim be-
yond a certain sum in lieu of every right in the com-
munity, the article is a penal obligation which binds
the other party or the heirs of such latter party to
pay the sum agreed on, whether the community be
good or bad, sufficient or not to discharge such sum.
1623-
If the article only establish the penal undertaking
with regard to the heirs of the married party, the
latter, in case of survivorship, has a right to legal
partition by moieties,
1524.
The husband or his heirs who retain, by virtue of
the stipulation set forth in article 1520, the entirety
of the community, is obliged to discharge all the
debts thereof.
The creditors have not in such case any action
against the wife or against her heirs.
If the wife be the survivor who has, for a sum
4S4 Book III. — Modes of acquiring Property.
agreed upon, the right of retaining all the commu-
nity against the heirs of the husband, she has her
election either to pay them such sum, becoming
bound for all the debts, or to renounce the commu-
nity, ftnd abandon the goods and charges thereof to.
the heirs of her husband.
1525.
It is permitted to the married parties to stipulate
that the entirety of the community shall belong to
the survivor or to one *of them only, saving to the
heirs of the other the previous resumption of contri*
butions and capital sums fallen into the community
in right of their principal.
This stipulation is not deemed an advantage sub*
ject to the rules relative to donations, whether as
to substance, or as to form, but simply a covenant
of marriage and between partners.
SECTION VIII.
Of Community by general Title.
1526*
Married persons may establish by theic contract
a general community of their property as well move-
able as immoveable, present and future, or of all their
present property only, or of all their future property
only.
TiOe v.— Contract of Marriage^ Sgc. 425
Regulations common to the eight preceding Sections.
1527.
That which has been said in the eight previous
sections does not confine to their precise regulations
the stipulations of which conventional community is
susceptible.
Married persons may make any other agreements,
as has been said in article 1387, ^nd saving the mo-
difications contained in articles 1388, 1389 and 1390.
Nevertheless, in the case where there shall have
been children by a preceding marriage, every agree-
ment which shall tend to give to one of the married
parties more than the portion regulated by article
1098, under the title " Of donations during life and
hy tsAll^^ shall be void as to all which exceeds such
portion ; but the simple benefit resulting firom the
common labour ^nd savings of the two married per-
sons out of their respective revenues, though un-
equal, shall not be considered as an advantage made
to the prejudice of the children of the former bed.
1528.
Conventional community continues subject to the
rules of legal community in all cases in which they
have not been superseded explicitly or impliedly by
the contract
SECTION IX.
Of Agreements excluding CommunUy.
1529.
If, without submitting to condition of dower, the
parties declare that they marry without community.
496 Book HI. — Modes ^acquiring Property.
or that they will be separate in property, the effects
of such stipulation are regulated as follows.
§ I. Of the Claose implying that the Parties marry without
Commnnity.
1530. ^
The article importing that the parties marry with-
out community does not confer upon the wife a
right to administer her property, nor to enjoy the
fruits thereof: such fruits are deemed to have been
given to the husband to sustain the expenses of
marriage.
1531.
The husband retains the administration of the
property of his wife moveable and immoveable, and
by consequence, the right to the enjoyment of all
the moveable property which she brings as dowry,
or which falls to her during the marriage ^ saving
the restitution thereof which he is bound to make
after the dissolution of the marriage, or after the
separation of property which shall be pronounced by
the court.
1532.
If among the moveables brought as dowry by, the
wife, or which have fallen to her during the marriage,
there are things which cannot be enjoyed without
consuming them, an estimatory statement thereof
must be annexed to the contract of marriage, or an
inventory thereof must be made at the time they so
fall to the wife, and th^ husband must restore their
value according to the estimate.
Tiile V.'-'-Caniract of Marriage, ^c. 427
15SS.
The husband is bound for all charges of the usu-
fruct.
1534.
The article set forth in the present section forms
no objection to an agreement that the wife shall re-
ceive annually, on her single acquittance, a certain
portion of her revenues for her support and personal
wants.
1535.
The immoveables settled as dower, in the case of
the present section, are not inalienable.
Nevertheless they cannot be alienated without the
consent of the husband, and upon his refusal, without
the authority of the court.
§ IL Of the Clanse of Separation of Ph>perty.
1536.
Where the parties have stipulated by their marriage
contract that they will be separate in goods, the wife
retains the entire management of her property move-
able and immoveable, and the free enjoyment of her
revenues. *
1537.
Each of the parties contributes to the expenses of
marriage, according to the covenants contained in
their contract ; and if there be none on this head,
the wife contributes to such expenses up to the
amount of one third of her income.
438 Book HI. — Modes qf acquiring Property.
15S8.
In no case, nor by virtue of any stipulation, can
the wife alienate her immoveables without the special
consent of her husband, or upon his refusal, without
being authorised by the court.
Every general authority granted to the wife of
alienating immoveables, either by the marriage con-
tracts or subsequently, is null.
15S9.
Where the wife under separation has given up to
her husband the enjoyment of her property, the latter
is only bound, either upon demand made by his wife,
or upon the dissolution of the marriage, to a produc-
tion of the existing fruits, and he is not accountaUe
for those which have been consumed up to that
period.
CHAPTER HI.
Of Regulation of Dowry.
1540.
The dowry, under this regulation as under that of
cap. 2, is the property which the wife brings to her
husband in support of the charges of marriage.
1541.
All that which the wife settles or which is con-
ferred upon her by contract of marriage, appertains
to her dowry, if there be no stipulation to the con-
trary.
Titk v.— Contract of Marriage, 8^0. 429
SECTION I.
Of Settlement of Dowry .
1542.
The settlement of dowry may reach to all the pre-
sent and future property of the 'wife, or all her pre-
sent property only, or a part of her present and
future property, or even an individual article.
The settlement in general terms, of all the wife's
property, does not comprehend future property.
1543.
Dowry cannot be settled or even augmented during
the marriage.
«
1544.
If the father and mother settle a dowry conjointly,
without distinguishing the share of each, it shall be
taken to be settled by equal portions.
If the dowry be settled by the father only in re-
spect both of paternal and maternal rights, the
mother though present at the contract, shall not be
bound, and the dowry remains entirely at the charge
of the father.
1545.
If the father or mother surviving settle a dowry
in respect of paternal and maternal property, without
specifying the portions, the dowry shall be taken
first from the rights of the intended husband in the
property of the party previously deceased, and the
4S0 Book IIL^^Modes qf acquiring Property.
residue out of the property of the party making set-
tlement.
1546.
Although the daughter endowed by her father and
mother have property in her own right of which they
have the enjoyment, the dowry shall be taken from
the property of the settlers, if there be no stipulation
to the contrary.
1547.
Those who settle a dowry are bound to warranty
of the objects settled.
1548.
Interest upon a dowry runs absolutely, from the
day of marriage, against those who have promised it,
although a term be fixed for its payment, unless
there be a stipulation to the contrary,
SECTION 11.
Of the RighU of the Husband over the Property in Donoryy and of the
inalienable Nature qf the Funds of the Dower,
1549.
The husband alone has the management of the
property in dowry, during the marriage.
He has alone the right to sue the debtors and de*
tainers thereof, to enjoy the fruits and interest
thereof, and to receive reimbursements of capital.
Nevertheless it may be agreed, by the marriage*
contract, that the wife shall receive annually, on her
Titk V. — Contract of Mdrriage, Sfc. 431
single acquittance, a part of her revenues for her
maintenance and personal wants.
1550.
The husband is not bound to find security for the
receipt of the dowry, unless he have been subjected
thereto by the contract of marriage.
1551.
If the dowry or part of the dowry consist of move-
able articles fixed at a price by the contract, without
declaration that such estimate does not amount to
a sale, the husband becomes proprietor thereof, and
is only debtor in the price given to the moveables.
1552,
An estimate put upon an immoveable settled in
dowry does not transfer property therein to the hus-
, band, without an express declaration thereof.
1553.
An immoveable acquired by money in dowry does
not appertain to the dowry unless the condition of
expending it have been stipulated by the marriage-
contract.
It is the same with respect to an immoveable given
in payment of dowry settled in money.
1554.
Immoveables settled in dowry cannot be alienated
or pledged during the marriage, either by the hus-
432 Book III. — Modes of acquiring Property.
band» or by the wife, or by the two conjointly;
saving the exceptions which follow.
1555.
The wife may, with the authority of her husband,
or upon his refusal, with the permission of the court,
bestow the goods of her dowry in the establishment of
children which she may have by a former marriage ;
but if she is only authorised by the court, she must
reserve the enjoyment to her husband.
1556.
She may also, with the authority of her husband,
bestow the goods of her dowry for the establishment
of their common children.
1557.
The immoveable in dowry may be alienated when-
ever the alienation thereof has been permitted by the
marriage-contract.
1558.
The immoveable in dowry may also be alienated
with the permission of the court, and by auction,
after three public notices.
In order to relieve the husband or wife from
prison ;
To furnish sustenance for the family in the cases
provided for by articles 203, 205, and 206, under
the title " Of Marriage ;*'
To pay the debts of the wife or of those who have
Title V.'-^Contract of Marriage, ^c. 48S
settled the dowry, when such debts have a certain
date anterior to the contract of marriage ;
To make substantial reparations indispensable to
the preservation of the immoveable in dowry ;
In short, when such immoveable is found in copar^
cenary with third persons, and when it is acknow-
ledged to be indistributable.
In all these cases, the excess of the price of the
sale above the acknowledged exigencies shall continue
to form part of the dowry, and shall as such be ex-
pended for the benefit of the wife.
1559.
The immoveable in dowry may be exchanged, but
with the consent of the wife, for another immoveable
of equal value, of four-fifths at least, on proving the
utility of the exchange, or obtaining the authority
of the court, and after an estimate by competent
persons officially named by the court
In this case, the immoveable received in exchange
shall appertain to the dowry ; so also shall the excess
of price, if there be any, and it shall be expended as
such for the benefit of the wife.
1560.
If out of the excepted case, which is hereafter to be
explained, the wife or the husband, or both conjointly
alienate the funds of the dower, the wife or her heirs
may cause the alienation to be revoked after the dis-
solution of the marriage, without power of objecting
any prescription during its continuance; the wife
F F
4S4 Book III. — Modes of acquiring Property.
shall have the same right after separation of pro-
perty.
The husband himself may cause the alienation to
be revoked during the marriage, becoming neverthe-
less liable in damages to the purchaser* unless he
have declared in the contract that the property sold
was in dower.
1561.
Immoveables in dower not declared alienable by
the contract of marriage are imprescriptible during
the marriage, unless the prescription have com-
menced before.
They become nevertheless liable to prescription
after separation of property, at whatever period the
prescription may have begun.
1562.
The husband is bound, as respects all property in
dower, by all the obligations of the usufructuary.
He is responsible for all prescriptions gained and
deteriorations occurring by his negligence.
1563.
If the dowry be put in peril, the wife may sue for
separation of property, as has been mentioned in ar-
ticle 1443 and those following.
liUe V. — Contact of Marriage, fy:. 435
SECTION in.
Of the ReititiUian of Dower.
1564.
If the dowry consist of immoveables.
Or of moveables not estimated by the marriage-
contract, or fixed at a just price, with a declaration
that the estimate does not take away the wife's pro*
perty therein.
The husband or his heiis may be compelled to re-
store it without delay, after the dissolution of the
marriage. "^ .
1665.
If it consist of a sum in money.
Or in moveables, to which a price has been affixed
by the contract, without declaration that the esti-
mate does not render the husband proprietor thereof.
The restitution cannot be exacted within a year
after the dissolution.
1566.
If the moveables of which the wife retains the
property have perished by using and without the
fault of the husband, he shall be only bound to
restore those which remain, and in the state in which
they shall happen to be.
Nevertheless the wife may, in all cases, select linen
and clothes for her actual use, saving a deduction
of their value when such linen and clothes shall have
been originally settled with estimate.
F F 2
4S6 Book IIL— Modes of acquiring Property.
1567.
If the dowry comprehend obligations and annui-
ties which have perished, or suffered retrenchments
which cannot be imputed to negligence in the hus-
band, he shall not be responsible for them, but shall
be entirely discharged on restoring the contracts*
1568.
If an usufruct have been settled in dowry, the
husband or his heirs are only bound, at the dissolu-
tion of the marriage, to restore the right of usufruct,
and not the fruits fallen in during the marriage.
1569.
If the marriage have continued ten years subse-
quently to the expiration of the term assigned for
the payment of the dowry, the wife or her heirs may
demand it again from the husband after the disso-
lution of marriage, without being held to prove that
he has received it, unless be is able to show dili-
gence employed in vain in order to procure the pay-
ment thereof to himself.
1570.
If the marriage be dissolved by the death of the
wife, the interest and fruits of the dowry to be
restored run in full right for the benefit of her heirs
subsequently to the day of the dissolution.
If it be so by the death of the husband, the wife
has the choice of demanding the interest of the
dowry during the year of mourning, or of causing
Title V. — Contract of Marriage, <§v. 48^
alimony to be supplied to her during the said period
at the expense of her husband's succession ; but, in
both cases, her lodging during such year, and her
mourning weeds, must be supplied to her from the
succession, and without deduction from the interest
due to her.
1571. -
On the dissolution of the marriage, the fruits of
the immoveables in dowry are distributed between
the husband and the wife, or their heirs, in propor-
tion to the time it has continued, during the last
year.
The year begins to run from the day on which the
marriage was celebrated.
1572.
The wife and her heirs have no privilege for th^
recovery of the dowry from mortgage-creditors prior
to herself.
1578.
If the husband were already insolvent, and had no
trade or profession when the father settled a dowry
on his daughter, the latter shall only be bound to
bring into the succession of her father the action
which she has against that of her husband^ in order
to procure reimbursement thereof.
But if the husband have not become insolvent
until after the marriage.
Or if he have a calling or profession which serves
him in place of fortune,
The loss of the dowry falls singly on tHe wife.
4$8 Book IIL^^Modes qf acquiring Property.
SECTION IV.
Of Partiq^ikemalia.
All the property of the wife which has not been
settled in dowry, constitutes paraphernalia.
1575.
If all the goods of the wife are paraphernalia, and
if there be no covenant in the contract that she shall
sustain a portion of the expenses of marriage, the
wife contributes thereto to the amount of one third
of her revenues.
1576.
The wife has the management and enjoyment of
her paraphernalia*
But she cannot alienate such property, nor become
party to a suit in respect of the said property, with*
out the authority of her husband, or upon his refusal,
without the permission of the court,
1577.
If the wife give her procuration to her husband to
administer her paraphernalia, on condition of ren*-
dering account to her of the fruits, he shall be bound
towards her as every other agent.
1578.
If the husband have enjoyed the paraphernalia of
his wife, not as her agent, and nevertheless without
Title v.— Contract qf Marriage, ^. 459
opposition 00 ber part, he is only bound, on the dis-
solution of the marriage, or at the first demand of
his wife, to the production of the existing fruits, and
he is not accountable for those which have been con-
sumed up .to that period.
1579.
If the husband have enjoyed the paraphernalia, in
spite of opposition manifested by his wife, he is ac-
countable to her for all the fruits as well existing as
consumed.
1580.
The husband enjoying the paraphernalia, is bound
by all the obligations of the usufructuary.
PARTICULAR REGULATION.
1581.
On submitting to condition of dowry, married par-
ties may nevertheless stipulate for an union of acqui*
sitions, and the effects of such union are regulated
as is mentioned in articles 1498 and 1499*
440 Book III. — Modes of acquiring ProperUfs
TITLE VI.
OF SALES.
Decreedthe 6th of March, 1804. Promulgaied the I6th of the
iame Month,
CHAPTER I.
Of the Nature and Form of Safes.
1582*
A sale is an agreement by which one person is
bound to deliver a thing, and another to pay for it
It may be made by authentic act, or under private
signature.
158S.
It is complete between the parties, and the pro-
perty is acquired in law by the purchaser with regard
to the seller, as soon as the thing and the price are
agreed on, though the thing have not been delivered
nor thie price paid.
1584.
The sale may be made absolutely and uncondi-
tionally, or subject to a condition which may either
suspend or annul it.
It may also have for its object the alternative of
two things or more.
In all these cases its effect is regulated by the ge-
neral principles of agreements.
Titk VI.— Of Sola. 441
1585.
When merchandise is 9old not in bulk^ but by
weight, tale, or measure, the sale is not complete, in
this sense, that the articles sold remain at the risk of
the vendor until they shall be weighed, counted, or
measured ; but the purchaser may demand either de-
livery thereof or damages, if there be ground, in case
of non-performance of the engagement.
1586.
If on the contrary the merchandise have been sold
in bulk, the sale is perfect, although the merchan*
disc have not been weighed, counted, or measured.
1587.
With respect to wine, oil, and other things which
persons are in the habit of tasting before making
purchase thereof, there is no sale so long as the pur-
chaser have not tasted or approved of them.
1588.
A sale made on trial is always presumed to have
been made under a suspensive condition.
1589.
The promise of sale is equivalent to a sale, where
there is a mutual agreement of the two parties upon
the article and the price.
1590.
If the promise to sell have been made with earnest.
4M Book IIL-^Moiks qf acquiring Proper^.
each of the contracting parties is at liberty to depart
therefrom ;
He who has given it, on losing it.
He who has received it, by restoring double.
1591.
The price of the sale must be determined and de-
signated by the parties*
1592.
It may nevertheless be left to the arbitration^f a
third person : if such third party will not or cannot
make an estimate, there is no sale.
159S.
The expenses of acts and other appendages of the
sale, are at the charge of the purchaser.
CHAPTER II.
Who may buy or sell.
1594.
All persons not interdicted by the law are capable
of buying or selling.
1595.
The contract of sale cannot take place between
married persons, except in the three following cases :
1st That in which one of the married parties
cedes property to the other judicially separated, in
payment of the claims of such separated party ;
Tltk VI.-0/ Saks. 448
Sd. That in which the cession which the husband
makes to the wife, even when not separated^ has a
lawful cause, such as reimbursement of her immove-
ables alienated, or of money belonging to her, if
such immoveables or money do not fall into com-
munity;
Sd. That in which the wife cedes property to her
husband in satisfaction of a sum which she has pro-
mised him in dowry, and where communis has been
excluded ;
Saving, in these three cases, the rights of the
heirs of the contracting parties, if there be indirect
advantage.
1596.
The following persons are forbidden to become
purchasers, either by themselves or by the interven-
tion of others, on pain of nullity :
Guardians of the property of those of whom they
have the guardianship ;
Factors of goods which they are charged to sell ;
Administrators of the property of communes and
public establishments confided to their care ;
Public officers of national property, of which sale
is made by their means.
1597.
Judges, their deputies,. the commissaries of go-
vernment, their substitutes, registrars, tipstaves,
pastors of churches, official conductors of defences
and notaries, cannot become assignees of suits,
claims, and actions at law which are within the juris-
444 Book III. — Modes ofacqming Property.
diction of the court within whose cognizance they
exercise their functions, on pain of nullity, and ex-
penses and damages.
CHAPTER IIL
Of Things which mag/ be sold.
1598.
Every thing which is the object of commerce may
be sold, where particular laws have not prohibited
the alienation thereof.
1599.
A sale of another's property is null : it may afford
ground for damages where the purchaser was ig-
norant that the thing belonged to another.
1600.
The succession to a living person cannot be sold,
even with his consent.
1601.
If at the moment of sale the thing sold had en-
tirely perished, the sale shall be null.
If a part only of the thing have perished, it is in
the election of the purchaser to relinquish the sale,
or to demand the part preserved, causing the price
thereof to be determined by valuation.
Tiile VI.— Of Sales. 445
CHAPTER IV.
Of the ObUgaHons of the Setter.
SECTION I.
General Regulations.
1602.
The seller is bound to explain clearly what it is he
binds himself to.
Every obscure or ambiguous bargain is construed
against the seller.
1603.
He has two principal obligations^ that of deliver-
ing and that of warranting the thing which he sells.
SECTION 11.
0/Delivery.
1604.
Delivery is the transferring the thing sold into the
power and possession of the purchaser.
1605.
The obligation to deliver immoveables is fulfilled
on the part of the vendor^ when he has handed over
the keys, if the question be of a building, or when
he has handed over the titles to the property.
446 Book III. — Mo^ of acquiring Property.
1606.
. Delivery of moveable effects is cmnpleted.
Either by actual transfer^
Or by handing over the keys of the buildings
which contain them,
Or even by the single consent of theparties^ if the
transfer thereof cannot be made at the moment of
the sale, or if the purchaser have them already in his
custody by another title.
1607.
The delivery of incorporeal rights is made, either
by surrender of the titles, or by the use which the
purchaser makes thereof with the consent of the
seller.
1608.
«
The expenses of the delivery are at the charge of
the seller, and those of removal at the charge of the
purchaser, if there be no stipulation to the contrary.
1609.
The delivery must be made at the place where, at
the time of sale, the thing which formed the object
thereof, was, unless it be otherwise agreed upon.
1610.
If the seller fail to make delivery within the time
agreed between the parties, the purchaser may at bis
election demand the rescinding of the sale, or to be
put into possession, if the delay have occurred en-
tirely through the act of the seller.
Title VI.— Of Sales. 44T
1611.
The seller must, in all cases, be condemned in
damages, if an injury result to the purchaser through
failure in delivery at the term agreed on.
1612.
The seller is not bound to deliver the articlenftbe
purchaser do. not pay the price thereof, provided the
seller have not allowed him an interval for the pay-
ment.
161S.
Further he shall not be obliged to delivery, al-
though he may have allowed an interval of payment,
if, subsequently to the sale, the purchaser has be-
come bankrupt, or be in a state of embarrassment,
in such sort that the seller finds himself in imminent
peril of losing the price ; unless the purchaser give
him security to pay at the end of the term.
1614.
The article must be delivered in the state in which
it is at the moment of sale.
After that day all the fruits belong to the pur-
chaser.
1615.
The obligation to deliver the article comprises its
appurtenances, and every thing which has been de-
signed for its perpetual use.
1616.
The seller is bound to deliver the full extent as
44S Book IIL^^Modes qf acquiring Property.
contained in the contract^ subject to the modifi-
cations hereafter expressed.
1617.
If the sale of an immoveable have been made with
indication of extent, at the rate of so much measure,
the seller is bound to deliver to the purchaser, if he
require it, the quantity indicated in the contract ;
And if the thing is impossible to him, or if the
purchaser do not require it, the seller is compelled to
suffer a proportional diminution of the price.
1618.
If on the contrary, in the case of the preceding
article, there be found an extent greater than that
expressed in the contract, the purchaser has the
election to supply the remainder of the price, or to
relinquish the contract, if the excess be a twentieth
beyond the extent declared.
1619.
In all other cases.
Whether sale be made of a certain and limited
property.
Whether it have for its object funds distinct and
separate.
Whether it commence by the measure, or by de-
signation of the object sold followed by measure.
The expression of such measure does not give
place to any additional price in favour of the seller,
to any diminution of the price for less measure, ex-
Title VI.— Of Sales. 449
cept when the difference between the real measure
and that expressed in the contract is a twentieth
more or less, regard being had to the total value of
the objects sold, if there be no contrary stipulation.
ft
1620.
In the case in which, according to the preceding
article, there is ground for augmenting the price on
account of excess of measure, the purchaser has the
election either to recede from the contract, or to
furnish the additional price, and this with interest if
he have kept the immoveable.
. 1621.
In all cases in which the purchaser has a right to
recede from the contract, the seller is bound to
restore to him, beyond the price, if he have received
it, the expenses of the contract.
1622.
The action for addition to the price on the part of
the seller and that for diminution of price or that
for disengagement from the contract on the part of
the purchaser, must be brought within a year, com-
puting from the day of the contract, on pain of non-
suit.
1623.
If two estates be sold by the same contract, and
for one and the same price, with designation of the
measure of each, and there be found too little extent
in the one and too much in the other, compensation
6 G
450 Book III.— Modes of acquiring Properhf.
takes place until both be rendered accurate; and
the action either for addition, or for diminution of
price, only holds according to the rules established
above.
. 1624.
The inquiry for ascertaining upon whom the loss
or deterioration of the thing sold must fall before
delivery, whether on the seller or on the purchaser,
is determined according to the rules prescribed
under the title '* Offontracts or conventional Obliga^
tiofis in general.*^
SECTION III.
Of Warranty.
1625.
The warranty due from the vendor to the pur-
chaser embraces two points : the first is the peace-
able possession of the thing sold ; the second, the
secret defects of the article, or such as would annul
the sale.
§ I. Of Warranty in Case of Eviction.
1626.
Although at the time of dale no stipulation have
been made respecting warranty, the seller is obliged
by the law to warrant the purchaser against eviction
which he may sustain in the whole or part of the
thing sold, or against encumbrances on such object,
and not declared at the time of sale.
Title Vl.^Of Sales. 461
1627.
The parties may, by private agreements, add to
such obligation of law, or diminish the effect thereof;
they may even covenant that the seller shall not be
subject to any warranty.
1628.
Although it be said that the seller shall not be
subject to any warranty, he Continues nevertheless
bound by that which results from an act personal to
himself: every agreement to the contrary is void.
1629.
In the same case of stipulation of non-warranty,
the seller in case of eviction is bound to restitution
of the price ;
Unless the purchaser knew at the time of the sale
the danger of eviction, or unless he purchased at
his own peril and risk.
1630.
When warranty has been promised^ or nothing has
been stipulated on the subject^ if the purchaser is
evicted, he has a right to demand from the seller,
1st. Restitution of the price ;
2d That of the fruits, when he is compelled to
give them up to the proprietor who has evicted him ;
3d, The expenses incurred by the demand of war-
ranty from the purchaser, and those incurred by the
original demandant ;
G 6 2
A
452 Book III. — Modes of acquiring Property.
4th. In short, damages as well as the expenses and
lawful costs of the contract.
1631.
Where at the period of eviction the thing sold is
found to be diminished in value, or considerably de-
teriorated, either by the negligence of the purchaser,
or by the intervention of superior force, the seller is
not bound to restore the entirety of the price thereof.
1632.
But if the purchaser have derived profit from the
spoliations committed by him, the seller has a right
to keep back from the price a 3um equal to such
profit.
1633.
If the thing sold be found augmented in price at
the period of eviction, although independently of
the act of the purchaser, the seller is bound to pay
him what it is worth beyond the price of sale.
1634.
The seller is bound to reimburse or to cause to
be reimbursed to the purchaser, by the party evict-
ing, all the useful reparations and improvements
which he shall have made in the estate.
1635.
If the seller have in bad faith disposed of the
estate of another, he shall be compelled to reim-
burse to the purchaser all the expenses, even though
Title VL— Of Saks. 453
mere matters of taste, which the latter shall have
made on the estate.
1636.
If the purchaser be evicted only from one part of
the thing, but which is of such consequence, as
respects the whole, that the purchaser would not
have bought it without the part from which he has
been evicted, he may be permitted to recede from
the purchase.
1637^
If, in the case of eviction from one part of the
estate sold, the sale have not been rescinded, the
value of the part from which the purchaser is found
to be evicted is reimbursed to him according to its
value at the period, of eviction, and not in propor-
tion to the total price of the sale, whether the thing
sold have augmented or diminished in value.
1638/
If the estate sold be found to be burthened, a de-
claration thereof having been made, with non-appa-
rent servitudes, which shall be of such importance
that there is ground for presuming that the pur-
chaser would not have bought if he had been in-
formed thereof, he may demand to have the contract
rescinded, unless he shall rather prefer an indemnity.
1639.
The other questions which may arise respecting
damages accruing to the purchaser from the non-
performance of the sale, must be decided according
454 Book IIL — Modes ^acquiring Property.
to the general rules established under the title *^ Of
Contracts or Conventional Obligations in gmeraU^
1640.
The warranty for cause of eviction ceases when
the purchaser has suffered himself to be condemned
in a judgment in the last resort>, or from which an
appeal is not allowed, without summoning his vendor,
if the latter prove that sufficient grounds existed for
rejecting the suit.
k II. Of the Wamnty against Defecto in the Thing sold.
1641.
The seller is bound to warranty in respect of secret
defects in the thing sold which render it improper for
the use to which it is destined, or which so far dimi-
nish such use, that the buyer would not have pur-
chased it, or would not have given so large a price,
if he had known them.
164S.
The seller is not bound against apparent faults
and such as the purchaser might have taken cogni-
zance of himself.
164S.
He is bound against concealed faults, even though
he was not aware of them, unless in such case it have
been stipulated that he should not be bound to any
warranty.
Title VI.— 0/ Sales. 455
1644.
Id the cases of articles 1641 and 164S, the pur-
chaser has the election to return the thing and to
obtain restitution of the price, or to keep the thing
and to cause such a portion of the price to be re-
stored to him as shall be settled by competent
persons.
1645.
If the seller was acquainted with the faults of the
thing, he is bound, beyond the restitution of the
price which he has received for it, in all damages to-
wards the purchaser.
1646.
If the seller was ignorant of the faults of the
thing, he shall only be bound to a restitution of the
price, and to reimburse to the purchaser the expenses
occasioned by the sale.
1647.
If the faulty thing have perished in consequence
of such bad qualities, the loss falls upon the seller,
who shall be bound towards the purchaser to a resti^
tution of the price and to other Compensations ext,^
plained in the two preceding articles.
But a loss happening by accident is placed td the
account of the purchaser.
1648.
The action resulting from faults annulling the
sale must be brought by the purchaser, within a short
456 Book III. — Modes of acquiring Property.
interval, according to the nature of such faults, and
the usage of the place where the sale was made.
1649.
It does not take place with respect to sales made
by authority of law.
CHAPTER V.
Of the Obligations of the Purchaser^
1650.
The principal obligation of the purchaser is to pay
the price at the day and in the place appointed by
the sale.
1651.
If nothing be settled on this head at the time of
sale, the purchaser must pay at the time and in the
place where delivery is to be made.
1652.
The purchaser is indebted in interest on the price
of sale up to the payment of the capital, in the three
following cases :
If it have been already agreed on at the time
of sale ;
If the thing sold and delivered produces fruits or
other revenues ;
If the purchaser have been summoned to pay-
In the last case, interest runs only from the day of
the summons.
Titk Vl.—Of Saks. ^57
1653.
If the purchaser be harassed or has a just ground
for fearing he shall be troubled by an action either
of mortgage, or of counter-claim, he may suspend
the payment of the price until the seller have put an
end to such harassment, unless the latter prefer
giving security, or unless it have been stipulated,
that notwithstanding such annoyance, the purchaser
shall pay.
1654.
If the purchaser does not pay the price, the seller
may demand annulment of the contract.
1655.
Annulling of the sale of immoveables is pronounced
immediately if the seller is in danger of losing the
thing and the price.
If such danger do not exist, the judge may accord
to the purchaser a delay more or less extended ac-
cording to circumstances.
Such interval being passed without the purchaser
having paid, rescission of the sale shall be pro-
nounced.
1656.
If it have been stipulated at the time of the sale
of immoveables, that on failure of payment of the
price within the term agreed on, the sale shall be
annulled absolutely, the purchaser may nevertheless
pay after the expiration of the interval, so long as he
458 Book III. — Modes qf acquiring Property.
shall not have been sued for payment; but after
such suity the judge cannot grant him any delay.
1657.
In the matter of sale of provisions and moveable
efiects, the disannulling of the sale shall take place
absolutely and without summons, for the benefit of
the purchaser, after the expiration of the term agreed
on for taking them away.
CHAPTER VI.
Of the NulUty and Rescinding of Sales.
1658.
Independently of the causes of nullity or of re-
scinding already explained in this title, and of those
which are common to all agreements, the contract of
sale may be rescinded by the exercise of the power
of repurchase and by the inconsiderableness of the
price.
SECTION I.
r
Of the Power of Repurchase.
1659.
The power of repurchase or of redemption is a
compact by which the seller reserves to himself the
resumption of the thing sold, on restitution of the
principal price, and the reimbursement of which
mention is made in article 1673.
litle VL-^Of Sales. 459
1660.
The power of repurchase cannot be stipulated for,
for a term exceeding five years.
If it have been stipulated for, for a longer term, it
is reduced to such term.
1661.
The term fixed is imperative, and must not be pro-
longed by the judge.
166a.
On failure by Ihe seller to exercise his action of
redemption within the term prescribed, the pur-
chaser becomes irrevocable proprietor.
1663.
The interval runs against all persons, even against
a minor, saving, if there be ground^ legal remedy.
1664. ^
The seller with covenant of repurchase may put
his action in force against a second purchaser, even
though the power of redemption shall not have been
declared in the second contract.
1665.
The purchaser with covenant of repurchase exer-
cises all the rights of his vendor ; he may prescribe
as well against the true owner as Agaipst those who
set up claims or. mortgages against the thing sold.
460 Book III. — Modes of acquiring Property.
1666.
He may oppose the benefit of seizure and sale to
the creditors of his vendor.
1667.
If the purchaser with covenant of redemption of
an undivided portion of an estate have become high-
est bidder for the entirety at an auction claimed
against him, he may oblige the vendor to redeem the
whole when the latter is desirous to make use of his
covenant.
1668.
If several persons have sold conjointly, and by a
single contract, an estate common to them all, each
one can only exercise his action for redemption as to
the portion which he had therein.
1669.
It is the same if the party who has sold an estate
alone leaves several heirs.
Each of such coheirs can only use the power of
repurchase as regards the portion which he takes in
the succession.
1670.
But, in the case of the two preceding articles, the
purchaser may demand that all the co-vendors or all
their coheirs should be made parties to the suit, in
order to obtain their agreement to the resumption
of the entire estate ; and if they cannot agree, the
petition shall be remanded.
Title VI.— Of Sales. 461
1671.
If the sale of an estate belonging to several per-
sons have not been made conjointly and of the whole
estate together, and if each have sold only the por-
tion which he had therein, they may put in force
separately the action for redemption in respect to
the portion which belonged to them ;
And the purchaser cannot compel the party who
shall exercise it in such manner, to redeem the
whole.
1672.
If the purchaser have left several heirs, the action
for redemption can be exercised against each of them
only for his portion, in the case in which it is still
undivided, and in that in which the thing sold has
been distributed between them.
But if distribution of the inheritance have been
made, and the thing sold have fallen to the lot of
one of the heirs, the action for redemption may be
brought against him for the whole.
1673.
The seller who makes use of the covenant of re-
purchase, must reimburse not only the principal
price, but also the expenses and lawful costs of the
sale, the necessary repairs, and those which hate
augmented the value of the estate, up to the amount
of such augmentation. He cannot enter into pos-
session until after having satisfied all these obliga-
tions.
Where the seller re-enters into his estate by virtue
46s Book IIL^^Modes {^acquiring Property.
of the covenant of redemption, he takes it exempt
from all the charges and mortgages with which the
purchaser has encumbered it : he is bound to exe-
cute leases made without fraud by the purchaser.
SECTION II.
Of annulling Sale^Jbr Catue oflt^ury,
1674.
If the vendor have been damni6ed in more than
seven-twelfths of the price of an immoveable, he has
a right to demand annulment of the sale, even though
he should have expressly renounced in the contract
the power of demanding such annulment, and though
he shall have declared he has given up the excess.
16T5.
In order to ascertain if there be injury to the
amount of more than seven-twelfths, it is necessaiy
to estimate the immoveable according to its state and
value at the moment of sale.
1676.
The petition is not admissible after the expiration,
of two years, computing from the day of sale.
'Such interval runs against married women, and
against absentees, interdicted persons, and minors
coming in right of a vendor of full age.
1677.
Proof of injury cannot be admitted except by a
TiOe VJ.— Of Sales. 468
judgment, and in the case only in which the facts
alleged shall be sufficiently probable and sufficiently
important to raise presumption of injury*
1678.
Such proof cannot be made except by a report
from three competent persons, who shall be bound
to draw up one single common statement, and to
form only one single resolution by plurality of voices.
16T9.
If there be different opinions, the statement shall
contain the motives thereof, without its being per*
mitted to appear of what opinion each competent
person was.
1680.
The three, competent persons shall be named of-
ficially, unless the parties shall agree in naming all
three conjointly.
1681.
In the case in which the action for annulment is
permitted, the purchaser has the election either to
restore the thing, receiving back the price which he
has paid therefore, or to keep the estate on pa3ang
the remainder of the just price, subject to a deduc-
tion of a tenth of the total price.
The third possessor has the same right, saving the
warranty against his vendor.
1682.
If the purchaser prefer keeping the thing on fur-
464 . Book III. — Modes of acquiring Property.
nishing the remainder regulated by the preceding
article, he is indebted in interest on the remainder,
from the day of the petition for rescission.
If he prefer restoring it and receiving the price,
he must restore the fruits from the day of the peti-
tion.
The interest on the price which he has paid, is also
calculated to him from the day of the dame petition
or from the day of payment, if he have not received
any fruits.
168S.
Annulment for injury does not take place in favour
of the purchaser.
1684.
It does not take place in any sales, which, accord-
ing to law, can only be made with the authority of
the court.
1685.
The rules explained in the preceding section for
cases in which several persons have sold conjointly
or separately, and for that in which the seller or
purchaser has left several heirs, are equally observed
for the exercise of the action for rescission.
CHAPTER VII.
Of Auctions.
1686.
«
If one thihg common to several persons cannot be
commodiously divided and without loss ;
Title VI.— Of Saks. 465
Or if in a partition made with mutual consent of
common property, there be found some goods which
none of the coparceners can or will take,
The sale thereof is made by auction, and the price
thereof is distributed between the joint-proprietors.
168T.
Each of the joint^proprietors is at liberty to demand
that strangers should be summoned to the auction :
they are necessarily summoned when one of the
joint-proprietors is a minor.
1688.
The mode and the formalities to ht observed in
the auction are explained under the title " Of Sue-
cessions/* and in the judicial code.
CHAPTER VIII.
Of the Transfer qf Credits and other Incorporeal
Rights.
1689.
In the transfer of a credit^ of a claim, or of an ac-
tion against a third person, the delivery is effected
between the party ceding and the party receiving by
assignment of the title.
1690.
The assignee is not seised with regard to third
persons except by the notification of the transfer
made to the debtor.
HH
4£6 Book III. — ModcM of acquiring Property.
Nevertheless the assignee may be equally seised
by the acceptance of the transfer made by the debtor
in an authentic act.
1691.
If, before the assignor or the assignee have signi-
fied the transfer to the debtor, the latter have paid
the assignor, he shall be validly dischaiged«
169S.
The sale or cession of a credit comprises the ac-
cessories of the credit, such as security, privilege, and
mortgage.
1698.
He who sells a credit or other incorporeal right,
must guarantee the existence thereof at the time of
the transfer, although it be made without warranty.
1694.
He does not answer for the solvency of the debtor
except when he is bound thereto, and up to the
amount only of the price which he has gained for
the credit.
1695.
Where he has promised to guarantee the solvency
of the debtor, such promise is only understood of
actual solvency, and does not extend to a future
time, if the assignor have not expressly stipulated
for it.
♦
1696.
He who sells an inheritance without specifying in
« •
Title VI.— Of Sales. 467
detail the objects thereof, is only bound to warrant
his quality of heir.
1697.
If he have already profited by the fruits of any*
estate, or received the amount of any credit belong-
ing to such inheritance, or sold any effects of the
succession, he is bound to reimburse them to the
purchaser, if he have not expressly reserved them at
the time of the sale. *
1698.
The purchaser must on his part reimburse to the
vendor what the latter has paid for the debts and
charges of the succession, and render him an account
of all in which he was creditor, if there be no con-
trary stipulation.
1699.
He against whom has been ceded a disputed right
may get himself relieved therefrom by the assignee,
on reimbursing to him the real price of the cession
with the charges and lawful costs, and with interest
to be computed from the day on which the assignee
paid the price of the cession made to him.
1700.
The thing is deemed disputed as soon as there is
a suit and contest on the ground of right.
1701.
The regulation contained in article 1699 ceases,
lst« In the case in which the cession has been
made to a coheir or co-proprietor of the right ceded;*
hh2
468 Book IIL — Modes (^acquiring Property.
2d. When it has been made to a creditor in pay*
ment of what is due to him j
Sd. When it has been made to the possessor of the
estate subject to disputed claim.
TITLE VIL
OP BARTER.
DttrMi the 7tk of March, 1 804. Promwtgaied the 1 7tk ijflhk Mtme
Month.
1702.
Barter is a contract bj which the parties mutually
give one thing for another.
1708.
Barter is effected by consent only, in the same
manner as a sale.
1704.
If one of the exchanging parties have already re^
ceived the thing given him in barter, and if it after-
wards prove that the other contractor is not the pro-
prietor of such thing, he cannot be compelled to de-
liver that which he has promised to deliver, but only
to restore that which he has received.
1705.
The exchanging party who is evicted ffom the
thing which he has received in exchange, has the
Titk VIII.— Contracts of Hiring. 469
ekctioQ to compromise for damages or to recover
his property.
1706.
Annulment for cause of injury does not take place
in the contract of barter.
1707.
AH the other rules prescribed for the contract of
sale apply also to barter.
TITLE VIII.
OF THE CONTRACT OF HIRING.
Dtcrctd the 7th of March 1804. Promulgated the I7ih of the
same Month.
CHAPTER I.
General Regulations.
1708.
There are two kinds of contracts of hiring :
That of things.
And that of work.
1709.
The hiring of things is a contract by which one of
the parties binds himself to give up to another the
enjoyment of a thing during a certain time, and for
a certain price, which the latter binds himself to pay
him.
1710.
The hiring of work is a contract by which one of
470 Book I I L— 'Modes of acquiring Property.
the parties engages to do something for another for
a price agreed upon between them,
1711.
These two kinds of hiring are again subdivided
into several particular species :
Lease is the name given to the hiring of houses,
and that of moveables ;
Farming-lease to that of rural heritages ;
Hire, the hiring of labour or of service ;
Hiring in cheptel, to that of animals of which die
advantage is distributed between the proprietor and
him to whom they are intrusted.
Proposal, estimate^ and contract for the undertaking
of a work at a determined price, are also a hiring,
when the material is furnished by the party for whom
the work is done*
The three last species have particular rules.
l7ia.
Leases of national property, of that of communes,
and public establishments, are subject to particular
rules.
CHAPTER 11.
Of the Hiring qf Things.
1718.
All descriptions of property moveable and im-
moveable may be hired.
TtOe rilL— Contracts qf Hiring. 471
SECTION I.
Of ike RuUs common to Leases of Houses and rural Property,
1714.
Hiring may take place either verbally or by wri-
ting.
1715.
If the lease made without writing have not yet re-
ceived any execution, and if one of the parties deny
it, proof cannot be received by witnesses, however
moderate the price thereof may be, and though it be
alleged that earnest has been given.
The oath can only be tendered to him who denies
the lease.
1716.
Where there shall be a dispute touching the price
of a verbal lease, of which the execution has begun,
and no acquittance shall exist, the proprietor shall
be believed therein upon his oath, unless the hirer
shall rather prefer to demand an estimate by compe-
tent persons } in which case the charges of the view
remain at his cost, if the estimate exceed the price
which he has declared.
1717.
The lessee has the right to underlet, or even to
assign his lease to another, if such power has not
been restricted.
47S Book III. — Modes afacqukifig Property*
He may be restricted as respects the whole or
part.
This article is always peremptory.
1718.
The articles of the title •* Of the Contract qf Mar^
riage and qf the respective Rights of married Persons^*
relative to leases of the property of married wo-
men, are applicable to leases of the property of
minors.
1719.
The lessor is bound by the nature of the contract^
and without the necessity of any particular stipula-
tion,
1st. To deliver to the hirer the thing hired ;
2d. To maintain such thing in a state to be em.
ployed for the use for which it was hired ;
3d. To put the hirer in peaceable possession there-
of during the continuance of his lease.
1720.
The lessor is bound to deliver the thing in a good
state of complete repair.
He must make in it, during the continuance of
the lease, all the reparations which may become ne-
cessary other than tenant*s repairs*
1721.
Warranty is due to the lessee against all faults or
defects of the thing hired^ which may impede<be
Titk VIIL— Contracts of Hiring. 478
use thereof, even though the lessor should not have
known them at the time of the lease.
If from such faults or defects any loss result to
the hirer, the lessor is bound to indemnify him.
1722.
' If, during the continuance of the lease, the thing
hired is destroyed in entirety by fortuitous events, the
lease is rescinded absolutely ; if it be only in part
destroyed, the lessee may, according to circum-
stances, demand either a diminution of the price, or
the rescinding of the lease itself. In neither case is
there any ground for indemnification.
1723.
The lessor cannot, during the continuance of the
lease, change the form of the thing hired.
• 1724.
If, during the lease, the thing hired have urgent
need of reparations, such as cannot be deferred to the
end thereof, the lessee must sustain them whatever
inconvenience they may cause him, and though he
should be deprived, while they are going on, of one
part of the thing hired.
But if such reparations endure more than forty
days, the price of the lease shall be diminished in
proportion to the time and to the part of the thing
hired of which he shall have been deprived.
If the reparations are of such a nature that they
render that uninhabitable which is necessary for the
474 Book III. — Modes qf acquiring Property.
lodging of the lessee and his family, the latter mxy
cause the lease to be rescinded.
1785.
The lessor is not bound to warrant the lessee,
against molestation which third persons may cause
him by acts committed against his enjoyment, with-
out moreover setting up any claim against the thing
hired ; saving to the lessee a prosecution under his
own name.
1736.
If on the contrary the hirer or the farmer have
been disturbed in their enjoyment in consequence of
an action concerning the ownership of the estate,
they are entitied to a proportionate diminution of
the price of the lease or farming-lease, provided that
such molestation and impediments have been an-
nounced to the proprietor.
1727.
If those who have committed such acts pretend to
have any claim to the thing hired, or if the lessee is
himself cited in court in order to see himself con*
demned to an abandonment of the whole or of part
of such thing, or to submit to the exercise of any
servitude, he must summon the lessor on his war-
ranty, and must be put out of the suit, if he require
it, on naming the lessor, in whose right he possesses.
1728.
The lessee is subject to two principal obligations :
Title VI I I. -^Contracts of Hiring. 47 S
Ist. To use the thing hired in a careful manner,
and according to the destination which was given to
it by the lease, or according to that which may be
presumed from circumstances, in default of agree-
ment;
2d. To pay the price of the lease in the terms
agreed upon.
1729.
If the lessee employ the thing hired for another
purpose than that to which it has been destined, or
from which may result a damage to the lessor, the
latter may, according to circumstances, cause the
lease to be rescinded.
1780.
If there have been a plan of the premises between
the lessor and the hirer, the latter must restore the
object such as he received it, excepting what has
perished, or become deteriorated by antiquity or
superior force.
1781.
If a statement of places have not been made, the
lessee is presumed to have received them in a good
condition as to tenant's repairs, and must restore
them such, saving contrary proof.
1782.
He is responsible for deteriorations or losses which
happen during his enjoy men t, unless he can prove
that they occurred without his fault.
476 Book III.^^Modes of acquiring Properbf.
1788.
He is answerable in case of fire, unless he can
prove that the fire hi4)pened by accident or superior
force, or by faulty construction,
Or that the fire was communicated from a neigh*
bouring house.
1784.
If there be several hirers, all are jointly and seve-
rally responsible for fire, unless they can prove that
the fire began in the house of one of them } in which
case the latter alone is bound therein ;
Or unless some of them can prove that the fire did
not commence in their lodging, in which case tiie
latter are not bound therein.
1785.
The lessor is bound for deteriorations and losses
which happen by the act of the persons of his house
or of his sub-tenants.
1786.
If the lease were made without writing, one of the
parties cannot give discharge to the other without
observing the intervals fixed by the usage of the
places.
1787.
The lease ceases absolutely at the expiration of the
term fixed, where it has been made in writing, with-
out its being necessary to give discharge.
Tiik VIIL^^-^ioniracts of Hiring. ^Tf
1788.
If at the expiration of written leases, the lessee
remains and is left in possession, a new lease is
effected, the operation of which is regulated by thef
article relative to hirings made without writing.
1789.
Where there has been a discharge signified, the
lessee, though he has continued his enjoyment, can-
not insist upon a tacit rehiring.
1740.
In the case of the two preceding articles, security
given for the lease does not extend to obligations
resulting from the prolongation.
1741.
The contract for hiring is dissolved by the loss of
the thing hired, and by the respective default of the
lessor and lessee, in fulfilling their engagements.
174«.
The contract for hiring is not dissolved by the'
death of the lessor, nor by that of the lessee*
1748.
If the lessor sell the thing hired, the purchaser
cannot expel the farmer or the lessee who has an
authentic lease or one of which the date is certain,
unless such right be reserved by the contract 6[
lease.
47S Book IIL — Modfi qf acquiring Property.
1744.
If it has been agreed, at the time of the lease, that
in case of sale the purchaser may eject the fanner
or hirer, and no stipulation have been made touching
damages, the lessor is bound to indemnify the fanner
or the lessee in the following manner.
1745.
If the question be touching a house, apartment,
or shop» the lessor pays under the head of damages,
to the hirer evicted, a sum equal to the price of the
rent, during the time which, according to the usage
of the place, is allowed between discharge and
quitting.
1746.
If rural property be in question, the indemnity
which the lessor must pay to the farmer, is of a third
of the price of the lease for the whole time which has
to run.
1747.
The indemnity shall be regulated by competent
persons, if the question relate to manufactures, ma-
chinery, or other establishments which require great
advances.
1748.
The purchaser who desires to make use of the
power reserved by the lease, of ejecting the farmer
or lessee in case of sale, is moreover bound to give
Title VIIL—Cmtracts ofBking. 479
the lessee the previous notice usual in the place for
discharges.
He must abo advertise the farmer of rural pro-
perty, at least a year in advance.
1749.
Fanners or lessees cannot be ejected unless they
be paid by the bailor, or on his default, by the new
purchaser, the damages above explained.
17«0.
If the lease have not been made by authentic act,
or have not a certain date, the purchaser, is not sub-
ject to any costs.
1751.
The purchaser with covenant of redemption can-
not make use of his power of ejecting the tenant until,
by^the expiration of the delay fixed for repurchase,
he become unchangeable proprietor.
SECTION II.
' Qf particular Rvlet and Leases.
1758.
The lessee who does not furnish the house with
sufficient moveables, may be expelled, unless he give
securities capable of answering for the rent.
1758.
The under-lessee is not bound towards the pro-
prietor except to the amount of the price of his un-
480 Book III.'^Modei qf acquiring Property.
der -lease in which he may be debtor at the moment
of his occupation, and without his being able to ob-
ject payments made in anticipation.
Payments made by the under lessee, whether by
virtue of a stipulation contained in his lease, or in
consequence of the usage of places, are not deemed
to be made by anticipation.
1754.
Tenant's repairs or ordinary reparations in which
the lessee is bound, if there be no article to the con-
trary, are those marked out as such by the usage of
places, and among others the reparations to be made
are.
To hearths, chimney*backs, jambs, and chimney-
pieces;
To the plastering of the bottom of the wails of
j^Murtments and other places of habitation, to the
height of a meter ;
To the pavement and windows of chambers, when
some of them only are broken ;
To glass, unless it be broken by hail, or other ex-
traordinary accidents, or arising from superior force,
for which the tenant shall not be bound ;
To doors, casements, bars or shutters of sh<^
hinges, window-bolts, and locks.
1755.
None of the reparations deemed to belong to te-
nants are chargeable on lessees, when they are only
occasioned by antiquity or superior force.
Title VIII.— Contracts of Hiring. 481
1756.
The cleansing of wells and houses of office are at
the charge of the lessor, if there be no clause to the
contrary.
1757.
A lease of furniture supplied for the purpose of
fitting up an entire house, an entire set of lodgings,
a shop, or any other apartments, is deemed to be
made for the ordinary duration of the leases of houses,
sets of apartments, shops or other apartments, ac-
cording to the usage of places.
1758.
The lease of a furnished apartment is taken to have
been made for a year, when it has been made at so
much a year ;
By the month, when it has been made at so much
a month ;
By the day, if it have been made at so much
a day*
If there be nothing to show that the lease was
made at so much a year, a month, or day, the hiring
is deemed to have been made according to the cus-
tom of the place.
1759.
If the party hiring a house or an apartment con-
tinue his enjoyment after the expiration of the lease
in writing, without opposition on the part of the
lessor, he shall be taken to occupy them on the same
1 1
488 Book III. — Modes qfacquirhig Property.
conditions^ for the term fixed by the usage of the
places, and shall not be at liberty to quit nor liable
to be ejected therefrom, until after a discharge given
according to the interval fixed by the usage of the
places.
1760.
In case of rescinding by the fault of the hirer, the
latter is bound to pay the price of the lease during
the time necessary to reletting, without prejudice to
the damages which may result from the wrong.
1761.
The lessor cannot dissolve the hiring, although he
declare his desire to occupy by himself the house
hired, if there have been no agreement to the
contrary.
1762.
If it have been agreed, in the contract of hiring,
that the lessor may come and occupy his house, he
is bound to signify beforehand a discharge at the
periods determined on by the usage of the places.
SECTION HL
0/ike Rules peculiar to Farming Leases,
1768.
The party who cultivates, under condition of a
partition of fruits with the lessor, can neither under"
let nor assign, if such power have not been expressly
granted to him by the lease.
Title Fill.— Contracts of Hiring. 483
1764.
In case of infringement, the proprietor has a right
to re-enter into enjoyment, and the lessee is con-
demned in damages resulting from the non-perform-
ance of the lease.
1765.
If, in a farming lease, an extent is given to an
estate exceeding more or less that which it really has,
there is no ground for augmentation or diminution
of the price for the farmer, except in the cases and
according to the rules expressed under the title
*' Of Sales:'
1766.
If the lessee of a rural heritage do not stock it
with cattle and implements necessary for its cultiva*
tion; if he abandon its culture } if he do not cultivate
it in a husbandlike manner} if he employ the thing
hired to another use than that for yrhich it lyas de-
stined i or if he do not generally execute the articles
of the lease, and damage thereby result to the lessor,
the latter may, according to circumstances, cause
the lease to he rescinded.
In case of rescinding proceeding from the act of
the lessee, the latter is l>ound for damages, as ha^
been n^ention^d in article 1764i.
1767.
Every hirer of rural property is bound to lay up
his corn in the places destined for this purpose^ ac-
pording to the leiise.
XI 2
4*4 Book III. — Modes ({f acquiring Properfif.
1768.
The lessor of rural property is bound, under pun
of all expenses and damages, to advertise the pro-
prietor of encroachments which may be committed
on his estate.
Such notice must be given within the same inter-
val as that which is regulated in case of summons,
accordkig to the distance of places.
1769.
tf the lease is made for several years, and if,
during the continuance of the lease, the whole or a
moiety of one crop at least be carried away by for-
tuitous events, the farmer may demand a remission
of the price of his hiring, unless he be indemnified by
preceding harvests.
If he be not indemnified, the estimate of the re-
mission can only take place at the end of the lease,
at which period a balance shall be made of all the
years of enjoyment :
But the judge may, nevertheless, relieve the lessee
provisionally from the payment of a part of the price,
by reason of loss sustained.
1770.
If the lease be only for one year, and the loss be of
the whole of the fruits, or at least of a moiety, the
lessee shall be discharged from a proportional part
of the price of the hiring.
He cannot claim any remission if the loss be less
than a half.
Title VJIL-^ContracU of Hiring, 485
1771.
The farmer cannot obtain remission, when the loss
of the fruits occurs after they are severed from the
soil, unless the lease give to the proprietor a propor-
tional part of the fruits in kind ; in which case the
proprietor must sustain his part of the loss, provided
the lessor have been guilty of no delay in delivering
him his portion of the crop.
Neither is the farmer entitled to remission, when
the cause of the damage was in existence, and known
>at the period £Ut which the lease was made.
1772.
The hirer may be charged with accidents by ex-
press stipulation.
177S.
Such stipulation is only understood of ordiflary
accidents, such as hail, lightning, frost, or dropping
of grapes.
It does not extend to extraordinary accidents,
such as the ravages of war, or an inundation, to
which the country is not ordinarily subject, unless
the lessee has been charged with all accidents fore*
seen dr not foreseen.
1774.
A lease, without writing, of a rpral estate, ii)
4eemed to have been made for the time which is
necessary, in order that the lessee may collect all the
fruits of the heritage farmed.
486 Book IIL-^Modes qfacqtdring Property.
Thus, the lease of a meadow, of a vineyard, and of
any other estate of which the fruits are entirely col-
lected in the course of a year, is deemed to have
been made for a yean
A lease of arable lands, when they are divided by
courses of husbandry or seasons, is deemed to have
lieen made for so many years as there are crops.
1775.
The lease of rural heritages, although made with-
out writing, ceases absolutely at the expiration of
the time for which it is taken to have been made,
according to the preceding article.
1776.
If, at the expiration of rural leases in writing, the
lessee remain and is suffered to remain in possession,
a new lease is operated, of which the effect is regu*
lated by article 1774.
1777.
A farmer, on quitting, must leave to him who sue*-
ceeds him in the cultivation, suitable buildings and
other conveniences for the labours of the succeeding
year ; and on the other hand, the farmer entering
must supply to him who quits, suitable buildings and
other conveniences for the consumption of the fod-
der, and for the crops remaining to be gathered.
In both cases, the usage of the places must he
conformed to.
Title VIIL— Contracts of Hiring. 487
1778.
The farmer, on quitting, must also leave straw and
feed-corn for the year, if Tie received them at the
time of his entry upon possession ; and even though
he should not have received them, the proprietor
may retain them according to estimate.
CHAPTER III.
Of the hinng of Labour and Industry.
1779.
There are three principal species of hiring of labour
and industry :
1st. The hiring of workmen who engage them-
selves in the service of any one ;
2d. That of carriers, as well by land as by water,
who are charged with the conveyance of persons or
commodities ;
8d. That of persons who undertake works by esti-
mate or by contract.
SECTION I.
Of the hiring ^f Domestics and Artificers,
1780.
Services can only be engaged for a term, or for a
determinate undertaking.
•'
«<
488 Book IIL^— Modes of acquiring Property.
1781.
The master is believed on his affirmation —
For the proportion of wages ;
For the pajrment of the sabry for the year elapsed ;
And for sums paid on account for the current year.
SECTION II.
Q/* Cmriers by Land and by fFaier.
1782.
Carriers by land and by water are subjected, for
the protection and preservation of the articles which
are confided to them, to the same obUgations as inn-
keepers, of which mention is made under the title
Of Deposit and Sequestration.**
«c
1788.
They are answerable not only for what they have
already received within their vessel or carriage, but
also for what has been delivered at the wharf or ware-
house, in order to be placed in their vessel or car-
riage.
1784.
They are responsible for the loss and average of
things intrusted to them, unless they can prove that
they have been lost and damaged by fortuitous cir-
cumstances, or superior force.
1785.
Those who undertake public conveyances by land
Title Fill.— Contracts of Hiring. 489
and by water^ and also public waggons, must keep a
register of money, of goods and packages, of which
they have the charge.
1786.
The managers and directors of carriages and public
waggons, the masters of barges and boats, are, more-
over, subjected to particular regulations, which form
the law between them and other citizens.
SECTION III.
OfEstimaies and Worh by Cotdrad,
1787.
When a party is charged with the performance of
a work, it may be agreed that he shall supply only
his labour or skill, or further, that he shall also supply
materials.
1788.
If, in the case in which the workman furnishes the
material, the thing happens to perish, in whatsoever
manner it may be, before being delivered, the loss
thereof falls on the workman, unless the master be
guilty of negligence in not receiving the thing.
1789.
In the case in which the workman supplies only
his labour or his skill, if the thing happen to perish,
the workman is only bound for his own misconduct.
490 Book III. — Modes qf acquiring Property.
1790.
If, in the case of the preceding article, the thing
happens to perish, though without any fault on the
part of the workman, before the work has been re-
ceived, and without the master having been guilty of
delay in showing it, the workman has no wages to
claim, unless the thing have perished by the fault of
the material.
1791.
If the question respect work in several parls, or by
measure, the proof thereof may be made in parts \ it
is deemed to have been made for all the parties paid,
if the master pay the workman in proportion to the
work done.
1798.
If the edifice, built at a let price, perish in whole or
in part by defect in its construction, even by defect
in the foundation, the architect and the contractor
are responsible therefore for ten.years.
179«.
Wh^a an architect or contractor has undertaken
to erect a building upon a penalty, after a plan set^
tied ftnd agreed with the proprietor of the soil, he
cannot demand any augmentation of price, neither
under pretext of augmentation of the value of labour,
or of materials, nor under that of alterations or en-
largements of such plan, if such alterations or enlarge-
9»0ttU have noft been authorised in writing, and the
price agreed with the proprietor.
Title VlIL^-^ntracts of Hiring. 491
1794.
The master may rescind by his single will the bar-
gain with penalty, although the work be already
begun, on indemnifying the contractor for all his
expenses, for all his labour, and for all which he
might have gained in such undertaking.
1795.
The contract for hiring of work is dissolved by the
death of the workman, of the architect, or con-
tractor.
1796.
But the proprietor is bound to pay according to
the price contained in the agreement, to their suc-
cession, the value of work done and that of materials
prepared, at the time only when such labours and
such materials may be of service to him.
1797.
The contractor is responsible for the act of the
persons he employs.
1798.
Masons, carpenters, and other workmen, who have
been employed in the construction of a building, or
of other works done by contract, have no action
against the party for whom such work has been done,
except to the amount in which he is found to be
debtor towards the contractor, at the moment at
which their action is brought.
498 Book IIL — Modes qf acquiring Property.
1799.
Masons, carpenters, locksmiths^ and other work-
men, who directly make bargains at fixed prices, are
bound by the rules prescribed in the present sec-
tion : they are contractors in the calling in which
they deal.
CHAPTER IV.
Of Lease in Cheptel.
SECTION L
General Regulatiom.
1800.
A lease in cheptel is a contract by which one of
the parties gives to the other a stock of cattle to
keep, feed, and take care of, on the conditions agreed
between them.
1801.
There are several sorts of cheptels :
Simple or ordinary cheptel.
Cheptel by moiety.
Cheptel allowed to a farmer or other cultivator.
There is, besides, a fourth species of contract im-
properly called cheptel.
180S.
Every species of animal may be given in cheptel
which is susceptible of increase and profit in agri-
culture or commerce.
1803.
In default of particular agreements, such contracts
are regulated by the principles which follow.
Title Fill.— Contracts of Hiring. 49S
SECTION IL
Of simple Cheptd.
1804.
A lease in cheptel is a contract by which one
party gives to another beasts to keep, to feed, and to
take care of, on condition that the lessee shall enjoy
the benefit of half the increase, and that he shall
sustain also half the loss.
1805.
An estimated value given in the lease in cheptel
does not transfer the property to the lessee ; it has
no other object than to ascertain the loss or gain
which may be found at the expiration of the lease.
1806.
The lessee must employ all the care of a good
manager in the preservation of the cheptel.
1807.
He is not bound as to a fortuitous occurrence,
except when it. has been preceded by some fault on
his part, without which the loss would not have
happened.
1808.
In case of dispute, the lessee is bound to prove the
accident, and the lessor is bound to prove the fault
which he imputes to the lessee.
494 Book III. — Modes qf acquiring Property.
1809.
The lessee who is discharged as to the accident,
is always bound to render an account of the skins of
the beasts.
1810.
If the cheptel perish entirely without the fault of
the lessee, the loss thereof falls on the lessor.
If it only perish in part» the loss is sustained in
common, according to the price of the original esti*
mate, and that of the estimate at the expiration of
the cheptel.
1811.
Parties cannot stipulate,
That the lessee shall sustain the total loss of the
cheptel^ although happening by accident and with*
put his fault ;
Or that he shall sustain, in the loss, a larger pro*
portion than in the gain ;
Or that the lesaor shall t^ke by preference, at the
end of the lease, something more than the cheptel
yfhich he has supplied*
Every similar agreement is void.
The lessee alone has the benefit of the rn^lk, of
the dung, and of the labour of the animals given in
pheptel. The wool and the increase |ure divided.
181S.
The lessee cannot dispose of any beast of the
flock, whether of the stock or of the young, without
the consent of the lessor, who cannot himself di^ose
thereof without the consent of the lessee.
Title VIIL-^Contracts of Hiring. 495
1813.
When the cheptel is given to the farmer of an-
other's estate, it must be notified to the proprietor
of whom such fanner holds; without which he may
sei^ it, and cause it to be sold for what such farmer
owes him.
1814.
The lessee must not shear without previously in-i
forming the lessor thereof.
1815.
If there he no time fixed by the agreement for the-
duration of the cheptel, it is taken to have be6i\
made for three years.
1816.
The lessor may demand an earlier dissolutions
thereof, if the lessee do not fulfil his obligations.
1817.
At the end of the lease, or at the time of its dis*.
solution, a new valuation of the cheptel is to be
made.
The lessor may previously select beasts of each
species, to the amount of the original valuation ; the
excess is divided.
If a sufficient number of beasts does not exist to
complete the first valuation, the lessor takes what
remains, and the parties adjust the loss between
them.
496 Book IIL — Modes of acquiring Property.
SECTION III.
0/ Cheptd by Mokiy.
1818.
Cheptel by moiety is an association in which each
of the contractors supplies a moiety of the cattle^
which remain common for profit or for loss.
1819.
The lessee alone receives the benefit as in simple
cheptel of the milk, of the manure, and of the labour
of the beasts.
The lessor has a right only to a moiety of the
young and of the wool.
Every contrary agreement is void, unless the lessor
be proprietorof the farm of which the lessee is farmer,
or partial cultivator.
1820.
All the other rules of simple cheptel apply to
cheptel by moiety.
SECTION IV.
Of Cheptei given by the Proprietor to his Farmer or JottU^Cubhator.
9 I. Of Ckeptel given to the Farmer.
1821.
This cheptel (called also cheptel de fer) is that by
which the proprietor of a farm gives it to farm, on
TUk Fill.— Contracts of Hiring. 497
condition that at the expiration of the lease, the
farmer shall leave cattle of a value equal to the price
of the estimate of those which he shall have received.
1822.
The valuation of the cheptel given to the farmer
does not transfer to him the property ; but neverthe-
less places it at his risk.
1828.
All tjie profits belong to the farmer during the con-
tinuance of his lease, if there be no agreement to the
contrary.
1824.
In cheptels given to the farmer, the dung is not
among the personal profits of lessees, but belongs to
the farm, in the cultivation of which it must be en-
tirely employed.
1825.
The loss, even total and by accident, falls entirely
on the farmer, if there be no contrary agreement.
1826.
At the end of the lease, the farmer cannot retain
the cheptel by paying the original valuation thereof}
he must leave one of value equal to that which he
has received.
If there be a deficiency he must pay it } and it is
the excess only which belongs to him.
K K
498 Book IIL — Modes of acquiring Property.
§ II. Of Cheptel giren to the Joint-CnltiTator.
1827.
If the cheptel perish entirely without the fault of
the husbandman, the loss falls on the lessor.
18S8.
The party may stipulate that the husbandman
shall give up to the lessor hh share of the fleece at a
price inferior to the ordinary value ;
That the lessor shall have a larger part of the
profit J
That he shalj have a moiety of the milk :
But a stipulation cannot be made that the hus-
bandman shall be bound by tbe whole loss.
1829.
This cheptel ceases with the lease of the farm.
1880.
It is besides subjected to all the rules of siikiple
cheptel.
SECTION V.
«
Of the Contract improperly called Cheptel.
1831.
' . When one or more cows are given to be housed
and fed| the lessor preserves tlie property therein ;
he has only the profit of the calves produced by them.
Title IX.— Contract of Partnership. 499
TITLE IX.
OF THE CONTRACT OF PARTNERSHIP.
Decreed the Sth ofMarch^ 1804. Promulgated the ISth of the
same Month,
CHAPTER I.
General Ordinances.
1832.
Partnership is a contract by which two or more
persons agree to put something in common, with a
view to share the benefit which may result therefrom.
1883.
Every partnership must have a lawful object, and
be icontracted for the common interest of the parties.
- Every partner must bring thereto either money or
other property, or his skill.
1884.
Every partnership must be reduced to writing
when the obgect is. of a value exceeding one hun-
iked and fifty francs.
Testimonial proof is not admitted against or be-
yond what is ^contained in the act of partnership, nor
touching ' tliat > wiii^h ^ali be alleged to have been
said before, at the time, or subsequently to stich
K K 2
500 Book JIL^Modes tf acquiring Property.
act, although the question be of a sum or value less
than one hundred and fifty francs.
CHAPTER II.
0/ the different Species of Partnerships.
18S5.
Partnerships are general or particular.
SECTION I.
Of general PartnerAtp$,
18S6.
Two sorts of general partnerships may be distin-
guished, a partnership of all present property, and a
general partnership of profits*
1887.
A partnership of all present property is that by
which the parties put in common all the property
moveable or immoveable of which they are actually
possessed, and the profits which they may draw
therefrom.
They may also comprehend therein every other
species of profits \ but the property which may accrue
to them by succession, donation, or legacy, does not'
enter into such partnership, except for enjoyment ;
every stipulation tending to make the ownership of
such property form part thereof, is prohibited, saving
between married persons, and conformably to what
has been ordained respecting them.
Title IX.— Contract qf Partnership. 501
18S8.
A general partnership of profits includes all that
the parties shall acquire by their industry, by what-
soever title it may be, during the course of the part-
nership ; the moveables which each of the partners
possesses at the time of the contract are also com-
prised therein ; but their personal immoveables are
included therein for enjoyment only.
18S9.
The simple agreement of general partnership,
made without any explanation, imports only a general
partnership of profits.
1840.
No general partnership can take place but be-
tween persons respectively capable of mutually giving
and receiving, and to whom it is not forbidden to
derive advantage at the expense of other persons.
SECTION II.
Of particular Partnerships.
1841.
Particular partnership is that which applies only
to certain determinate objects, or to their use, or to
fruits to be reaped therefrom.
1842.
The contract by which several persons are asso-
ciated, either for a proposed undertaking or for the
508 Book III. — Modes qf acquiring Property.
exercise of some trade or profession, is also a parti-
cular partnership.
CHAPTER III.
Of the Engagements qf Partners among themselves^
and with regard to third Persons.
SECTION I
Of the Engagements of Partners to eaoh Other.
184S.
The partnership commences at the very instant of
the contract, if it do not point out another period.
1844.
If there be no agreement concerning the duration
of the partnership, it is taken to have been contract-
ed for the whole life of the partners, subject to the
modification contained in article 1869 ; or if an af&ir
be in question of which the duration is limited, for
the whole time which such affair continues.
1845.
Each paitner is debtor to the partnership in all
which he has promised to contribute thereto.
When such contribution consists of a certain pro-
perty, and the partnership is evicted therefrom, the
partner is surety therefore to the society, in the siune
manner as a vendor is to his purchaser.
Title /X.-^-'-Contract of Partnership. iOS
1846.
The partner who was to contribute a sum to the
partnership, and who has not done so, becomes, abso-
lutely and without demand, debtor for the interest
o£ such sum', computing from the day on which it
ought to have been made.
It is the same with regard to sums which he has
taken from the partnership chest, computing from
the day on which he shall have drawn them for his
private advantage ;
The whole without prejudice to more ample da-
mages if there be ground;
1847.
The partners who are bound to contribute their
skill to the partnership, owe to it an account of all
the profits which they have made by the species of
industry which is the object of such partnership^
1848.
When one of the partners is, on his own private ac-
count, a creditor in a sum due towards a person who
is found also to owe to the partnership a sum equally
due, the deduction of what he receives from such
debtor must be made from the credit of the partner-
ship, and from his own in the proportion of the two
credits, although he may in his acquittance have di-
rected the entire deduction to be made from his
private credit : but if he have expressed in his ac-
quittance that the deduction shall be made entirely
from the credit of the partnership, such stipulation
sliall be executed.
504 Book IIL — Modes qfMqmring Property.
1849.
When one of the partners has received his entire
share of a common debt, and the debtor has subse-
quently become insolvent, such partner is bound to
contribute what he has received to the common
stocky although he may have specially ^ven acquit*
tance^br his share.
1850*
Each partner is bound towards the partnership for
damages which he has caused it by his own fiiult,
without being at liberty to balance against such da«
mages the profits which his skill shall have procured
to it in other afiairs.
1851.
If things of which the enjoyment only has been
given up to the partnership are certain and determinate
objects, which do not consume by use, they are at
the risk of the partner who is their proprietor.
If such things do consume, if they grow worse by
keeping, if they have been destined to be sold, or if
they have been given up to the partnership at a valua-
tion contained in an inventory, they are at the risk of
the partnership.
If the thing have been estimated, the partner can
only recover the amount of his estimate.
185a.
A partner has an action against the partnership, not
only on account of sums which he has disbursed for
it, but also by reason of obligations which he has
ntk IX.'-'^Omtract qf Partnership. 505
contracted bond fide in the affairs of the partnership,
and for risks inseparable from the management of
them.
1858.
When the act of partnership does not determine
the diare of each partner in the profits or losses, the
share of each is in proportion to his contribution to
the funds of the partnership.
With respect to him who contributes only his skill,
his share in the benefit or in the losses is regulated
as if his contribution had been equal to that of the
partner who contributed the least.
1854.
If the partners have agreed to refer to one of them-
sdves or to a third pe^rson for the regulation of the
shares, such regulations cannot be impeached unless
it be evidently contrary to equity.
No opposition is admitted on this subject, if more
than three months have elapsed since the party who
pretends to be injured has had knowledge of the re-
gulation, or if such regulation have received on his
part a commencement of execution.
1855.
An agreement which would give to one of the
partners the whole of the profits is void*
The same rule holds with a stipulation which would
set free from all contribution to losses, sums or eflfecta
added to the funds of the partnership by one or more
of the partners.
M6 £m1 HI.-^Modes ofacqmrmg Preperty.
1856.
The partaer. charged with the management by a
special clause of the contract of partnership may,
notwithstanding the opposition of the other partners,
do all acts d^ending on his management, provided
it be without fraud.
Such power cannot be revoked without lawful
cause, so long as the partnership continues ; but if
it have been given only by an act subsequent to the
contract of partnership, it is revocable like a simple
authority.
1857.
Where several partners are charged with manage-
«ient without having determinate functions, or with-
out its having been expressed that one cannot act
without the other, tliey may each separately perform
all acts of administration.
1858.
If it have been stipulated that one of the ma-
nagers shall do nothing without the other, one cannot
act alone, without a new agreement, in the absence
of the other, even though the latter shall have been
under an actual incapability of concurring in acts of
management.
•
1859.
In de£uilt of special stipulations touching the
mode of management, parties may observei the fol-
lowing rules :
Title IX.'^-Cmtract qf Partnership. «07
Ipt. The partners are taken to have mutually given
each other the power of managing one for another.
What each does is alike valid for the share of hi^
partners without his having obtained their consent $
saving the right which the latter have, or one of
them, to oppose the execution before it be con-
cluded.
2d. Each partner may make use of things belong-
ing to the partnership, provided he employ them for
the use to which they were destined, and that he do
not make use of them contrary to the interest of the
partnership, or in such manner as to prevent bis
partners from making use of them according to their
right.
8d. Each partner has a right to oblige his copart-
ners to bear with him expenses necessary to the pre-
servation of the property of the partnership.
4th. One of the partners cannot make alterations
in immoveables depending on the partnership, even
though he maintain them advantageous to such
partnership, if the other partners do not consent
thereto.
1860.
The partner who is not manager cannot alienate
or encumber property^ even moveable, which is de-
npndf^nf nn thp. nartTiprshin.
__ _-- ~y ^ _ , .
pendent on the partnership.
1861.
Every partner may, without the consent of his co-
partners, connect himself with a third person in re-
508 Book III.'^Modei of acquiring Property*
ference to his own share in the partnership : he cannot,
without their consent, connect such person with the
partnership, even though he have the management
thereof.
SECTION II.
0/ike EngagemetUs ^Partners toitk raped to third Persmu,
1862.
In other partnerships than those for commercial
purposes, the partners are not bound jointly and se-
verally by partnership debts, and one of the partners
cannot bind the others unless the latter have be-
stowed on him that power.
1868.
Partners are bound towards the creditor with whom
they have contracted, each in an equal sum and
share, although the share of one of them in the part-
nership should be less, if the act have not specially
restricted the obligation of the latter to the footing
of such last-mentioned share.
1864.
A covenant that the obligation is contracted on
account of the society, binds only the partner con-
tracting and not the others, unless the latter have
given him authority, or unless the thing have turned
to the benefit of the partnership.
Title IX,—Ckmiract of Partnership. 509
CHAPTER IV.
Of the different Modes by which Partnership is put
an end to.
1865.
Partnership is put an end to,
1st. By the expiration of the time for which it was
contracted ;
Sd. By the destruction of the object, or the com-
pletion of the negotiation ;
8d. By the natural death of one of the partners ;
4th. By the civil death, interdiction, or embarrass-
ment of one of them ;
5th. By the desire expressed by one only or more
of them no longer to continue in partnership.
1866.
The prolongation of a partnership for a limited
time can only be proved by writing invested with the
same formalities as the contract of partnership.
1867.
When one of the partners has promised to put in
common the property in any thing, a loss occurring
before the contribution thereof has been effectuated^
operates a dissolution of the partnership with refer-
ence to all the partners.
MO Book III.^— Modes of acquiring Property.
Tlie partnership is equally dissolved in all cases
by the loss of the thing, when the enjoyment only
has been put in common, and when the property
thereof has continued in the hands of the partner.
But the partnership is not broken up by the loss
of the thing of which the property has already been
brought into partnership.
1868.
If it have been stipulated that in case of the death
of one of the partners the partnership shall continue
with his heir, or only between the surviving partners,
such arrangements shall be followed : in the second
case, the heir of the deceased has a right only to a
distribution of the partnership, regard being had to
the situation of such partnership at the time of the
death, and he has no participation in any ulterior
claims except so far as they are a necessary conse-
quence of what was done before the death of the
partner whom he succeeds.
«
1869.
Dissolution of partnership by the desire of one of
the parties applies only to partnerships of which the
duration is unlimited, and is effected by a renuncia-
tion notified to all the partners, provided such
rentmciation be hotA fide and not made at an unsea-
sonable timie.
1870.
The renunciation is not boni fide when the part-
ner renounces in order to appropriate to himself
Titie IX.— Contract qfPartnerMp. fill
alone a profit which the partners had proposed to
draw in common.
It is made unseasonably when objects are no
longer entire, and it imports the partnership that
the dissolution should be deferred.
1871.
Dissolution of partnerships for a term cannot be
demanded by one of the partners before! the period
agreed on, except so far as there shall be just
grounds therefore, as when another partner fails in
his engagements, or when habitual infirmity renders
him inadequate to the business of the partnership^
or other similar cases of which the lawfulness and
importance are left to the determination of the
judges.
1872.
The rules relating to the distribution of succes-
sionSy the form of such distribution, and the obliga-
tions which result therefrom between coheirs, are
applicable to distributions between partners.
Disposition relative to commercial Partnerships.
187».
Th^ dispositions of the present title only ^p}rfy to
commercial partnerships in the points' whiioh contaiti
nothing eontrary to the laws* and usages of com*
merce.
518 Book IIL-^Modes qfacquirmg Proper tjf.
TITLE X.
OF LOANS.
Decreed the 9ik of March, 1804. Promulgated the I9th of the
tame Month.
1874.
There are two kinds of loan :
That of things, which a party can use without
destroying them ;
And that of things, which are consumed by the use
which is made thereof.
The first species is called loan for use, ot gratidtotis
lending ;
The second is termed loan for consumption^ or
simply loan.
M
CHAPTER I.
Of Loan for Use^ or gratuitously.
SECTION I.
0/the Nature of Loan for Use.
1875.
Loan for use, or gratuitous lending, is a contract
by which one of the parties gives up a thing to an-
other in order to its employment, on condition by
the borrower to restore it after having so employed it
1876.
This loan is essentially gratuitous.
Title X.—Of Loans. 518
1877.
Tlie lender remaios proprietor of the thing lent.
1878.
Every thing which is of a commercial nature^ and
which does not consume by using* may be the object
of this agreement.
1879.
Engagements which are formed by lending* pass
to the heirs of him who lends, and also to the heirs
of the borrower.
But if the party has lent only on account of the
borrower* and to him personally* then his heirs can-
not continue the enjoyment of the thing lent*
SECTION II.
Of the Engagement of the Borrower,
1880.
The borrower is bound to watch like a good father
of a family over the security and preservation of the
thing lent. He cannot make use of it except for
the purpose determined by its nature* or by agree-
ment ; the whole on pain of damages^ if there be
ground.
1881.
If the borrower employ the thing for another use*
or for a longer time than he ought* he shall be bound
for any loss which happens even by accident.
L L
514 Book IIL'^Modes of acquiring Property.
.16S2.
If the thing lent perish by accident, against which
the borrower would have been able to secure it, by
employing his own property, or if, being able to pre-
serve only one of the two, he prefer his own» he is
bound for the loss of the other*
1883.
If the thing were estimated on lending it, the toss
which happens, even by accident, falls upon the bor-
rower, if there be no agreement to the contrary.
1884.
If the thing be deteriorated simply by the efifect
of the using for which it was borrowed, and without
any fault on the part of the borrower, he is not
bound for such deterioration.
1885.
The borrower cannot retain the thing by way of
compensation for that which the lender owei him.
1886.
If, in order to use the thing, the borrower has
been put to any expense, he cannot recover it.
1887.
If several persons have conjointly borrowed the
same thing, they are jointly and severally responsible
therefore to the lender.
Title X.—Of Loans. 51 5
SECTION III.
Of the Engagements/)/ the Party voho lends for Use,
1888.
The lender cannot withdraw the thing lent until
after the term agreed on, or in default of agreement,
until after it has been employed for the use for which
it was borrowed,
1889.
Nevertheless, if during such interval, or before
tlie necessity of the borrower has ceased, there occur
to the lender a pressing and unlooked-for need of
his property, the judge may, according to circum-
stances, compel the borrower to restore it to him.
1890.
If, during the continuance of the loan, the bor-
rower has been compelled, for the preservation of
the thing, to any expense, extraordinary, necessary,
and to such a degree urgent, that he has not been
able bo advertise the lender thereof^ the latter shall
be bound to reimburse it to him.
1891.
When the thing lent has such defects that it may
cause injury to the party who employs it, the lender
is responsible, if he knew of such defects and did not
inform the borrower thereof.
L L a
516 Book III. — Modes o/acquiring Proper^,
CHAPTER IL
Of Loan /or Consumption, or nmpU Loan.
SECTION h
t
Of the Nature oftke Loenjwr Conmmptkm^
189S.
The loan for consumption is a contract by which
one of the parties delivers to the other a certain
quantity of things which perish in using, on con-
dition by the latter to return him so much of the
same kind and goodness.
189S.
By the effect of such loan, the borrower becomes
proprietor of the thing lent ; and it is at his risk it
perishes, in whatsoever manner such loss happens.
1894.
A party must not give, under title of loan for con-
sumption, things which, though of the same species,
differ individually, as animals : it is in that case a
loan for use.
1895.
The obligation which results from a loan in money,
is always of that numerical sum only set forth in the
contract. ^
. . Title X.-^/ Loans. 517
If there have been an augmentation or diniimitiou
in the currency before the period of payment, the
debtor must return the numerical sum lent, and is
only bound to render such sum in the specie having
currency at the time of payment
1896.
The nde contained in the preceding article does
not take place if the loan have been made in ingots.
1897.
If they were ingots or commodities which were
lent, whatever be the augmentation or diminution of
their price, the debtor must always restore the same
quantity and quality, and need only restore that
SECTION 11.
Of the ObligaHans of the Lender.
1898.
In the loan for consumption, the lender is bound
by the responsibility established by article 1891 for
the loan for use.
1899-
The lender cannot demand again things lent, be-
fore the expiration of the term agreed on.
1900.
If a term for restitution have not been agreed on.
518 Book III.^Modes qf acquiring Property.
the judge may grant to the bdrrower a delay accord-
ing to circumstances.
1901.
If it have been agreed only that the borrower «hall
pay when he can, or when he shall have means to do
80, the judge shall fix a term of payment for him ac*
cording to circumstances.
SECTION III.
Of the Engagements t^fthe Borrower.
1902.
The borrower is bound to return the things lent
in the same quantity and quality, and at the term
agreed upon.
190S.
If he is under an impossibility of making satisfac-
tion therein, he is bound to pay the value thereof,
regard being had to the time and place at which the
thing was to have been restored, according to the
agreement.
If the time and place have not been regulated, the
payment is made at the price of the time and place
at which the borrowing took place.
1904.
If the borrower do not restore the things lent, or
their value at the term agreed on, he owes interest
thereon from the day of the demand in dottft.
Tkk X— Q^ Loans. ^Ift
CHAPTER III.
Of Loan on Interest.
1905.
It is lawful to stipulate for interest on simple loan
eidier in money, or provisions, or other moveable
things*
1906.
The borrower who has paid interest which was not
stipulated^ cannot either recover it or deduct it from
the capital.
1907.
Interest is legal or 'conventional. Legal interest
is that fixed by the law. Conventional interest may .
exceed that of the law in all cases where the law
does not prohibit it. ^
The rate of conventional interest must be fijced in
writing.
1908.
Acquittance of capital ^ven without reservation
of interest, raises presumption of the payment
thereof, and operates as a discharge of it.
1909.
A party may agree on interest for capital which
the lender binds himself not to demand.
In this case the loan takes the name of annuity.
1910.
Such annuity may be settled in two ways> in per-
petuity or for life.
iritig Property.
590 Book IIL-^Modes
1911.
A perpetual annuity is essentially redeemable.
The parties can only agree that the redemption
aliaU not be made within an interval not exceedii^
ten yearsp or without having advertised the grantee
for the term before that they shall have determined.
191&
The grantor of a perpetual annuity mqy be eooH
pelled to redemptio&t
1st. If he cease to fulfil his obligations during two
years;
Sd. If he fail in furnishing to the lender the secu-
rities promised by his contract.
191S.
The capital of a perpetual annuity becomes also
demandabl^ in case of the bankruptcy or embarrass-
ment of the grantor.
1914.
The itiles concerning life annuities axe estab&hed
under the title ^^ Ofakatory ContracU!^
\
THie XI^r^D^sH and Sequestrathn. &ii
TITLE XL
OF DEPOSIT. AND SEQUESTBATION.
Decreed the I4ih of March 1804. Promulgated the 24^A bf the
tame Month.
CHAPTER 1.
Of Deport in general and of its different Species.
1915.
Deposit in general is an act by which one party
receives the property of another, on condition of
keeping it safely, and restoring it in kind.
1916.
There are two descriptions of deposits: the de-
pent properly so called, and sequestration.
CHAPTER XL
Of D^osit properly so called.
SECTION I.
i^the Nature and Euence of the Contract %
1917.
Deposit properly so called is a contract essentiidly
gratuitous.
58S Book IIL'^Modes (^acquiring Prqperty.
1918.
It can only have for its object things moveable.
1919-
It is only perfected by the real or supposed de
livery of the thing deposited.
Supposed delivery is sufficient when the depo-
sitary finds himself already possessed, by some other
title, which the party consents to leave with him
under the title of deposit.
1920.
Deposit is voluntary or necessary.
SECTION II.
Offfoluntary Depoui.
1921.
Voluntary deposit is formed by the mutual con-
sent of the person who makes the deposit, and of
him who receives it.
1922.
Voluntary deposit cannot regularly be made ex-
cept by the proprietor of the thing deposited, or with
his consent express or implied.
1928.
Voluntary deposit must be proved by writing.
Testimooial proof is not receivable for value exceed-
ing one hundred and fifty francs.
1924.
When the deposit, being above one hundred and
fifty francs, is not proved by writing, the party im-
pleaded as depositary is believed thereon upon his
declaration, either upon the fact itself of the deposit,
or touching the thing which formed the object
thereof or upon the fact of its restitution.
1925.
Voluntary deposit can only take place between
persons capable of contracting.
Nevertheless, if one person capable of contractiiig
accepts a deposit from another incapable, he is bound
by all the obligations of a bon& fide depositary; he
may be prosecuted by the guardian or administrator
of the party who has made the deposit.
1926.
If a deposit have been made by one person capa-
ble with another who is not so, the person who has
made the deposit has only lus action for recovery
of the thing deposited, so long as it remains in the
hands of the depositary^ or an action for restitution
up to the amount of what has been the profit of the
latter.
SECTION III.
Of the Ohltgati«nt^af the Depontary.
1927.
The depMttlary must es^oy on the cmtqdy of
524 Book IIL^-^Modes of acquiring Proper^.
the thing deposited the same care which he emplojs
in the preservation of his own property.
1988.
The ordinance of the preceding article must be
applied with more rigour : — 1st, if the depositary has
himself offered to receive the deposit ; Snd, if he
has stipulated for wages for the custody of the de*
posit ; Srdy if the deposit were made solely for the
benefit of the depositary } 4th, if it has been ex-
pressly agreed that the depositary shall be responsir
Ue for every species of mischance.
1929.
The depositary is in no case bound for accidents
proceeding from superior force, unless he has been
guilty of delay in restoring the thing deposited
1990.
He cannot make use of the thing deposited with-
out the permission express or implied of the de-
positor.
1981.
He must not seek to know what articles have
been deposited with him, if they were entrusted to
him in a closed coffer or under a sealed cover.
1982.
_ »
The depositary must restore the thing identically
the same as he received it.
Thus a deposit of sums coined must be restored
t
Title XI.'^Deposit and Sequestration. 525
in the same currency as it was made, whether in
case of augmentation, or in the case of diminution
of value.
19SS.
The depositary is only bound to restore the thing
deposited in the state in which it is found at the
moment of its restitution.
Deteriorations which have not occurred by his
act, are at the charge of the depositor.
1984.
A depositary from whom the thing has been car-
ried off by superior force, and who has received a
price or some article in its place, must restore what
he has obtained in exchange.
1985.
The heir of a depositary, who has sold boni fide
the thing of whose deposit he was ignorant, is only
bound to restore the price which he has received,
or to cede his claim against the purchaser, if he has
not obtained the price.
1986.
If the thiDg deposited have produced fruits which
have been enjoyed by the depositary, he is obliged
to restore them. He is not indebted in interest for
money deposited, except from the day on which he
was summoned to make restitution.
1987.
The depositary can only restore the thing depo-
526 Book III.— Modes qf acquiring Property.
sited to the party who entrusted it to him, or to him
in whose name the deposit was made, or to the party
who has been appointed to receive it.
1988.
He cannot demand of the party who has made
the deposit proof that he was the proprietor of the
thing deposited.
Nevertheless! if he discover that the thing waa
stolen, and who was the veritable owner, he must *
*
announce to the latter the deposit which has been
made with him, with a notice to claim it within a
determinate and sufficient interval.
If the party to whom such announcement was
made neglect to reclaim the deposit^ the depositary
is validly discharged by the delivery thereof which
he makes to the party from whom he received it.
1989.
In case of the natural or civil death of the person
who has made a deposit, the thing deposited can only
be restored to his heir.
If there be several heirs, it must be restored to
each of them as to his share and portion.
If the thing deposited is indivisible, the heirs
must agree among themselves upon receiving it*
1940.
If the person who made the deposit has changed
situation ; for instance, if a woman, free at the mo-
ment at which the deposit was made» has been
Titk XL — Deposit and SequestraUon. 5^
married subsequently and become subject to the
authority of her husband ; if one of full age at the
time of the deposit has been put under restraint :
in all these cases, and others of the same nature^ the
deposit can only be restored to the party who has
the administration of the rights and property of the
depositor.
1941.
If the deposit were made by a guardian, by a bus-'
band, or an administrator, in one of these characters,
it can only be restored to the person whom such
guardian, husband, or administrator represented, if
their management or administration has closed.
1942.
If the contract of deposit points out the place in
which the restitution i^ to be made, the depositary
is bound to bring thither the deposit
If there be expenses of conveyance, they are at
the charge of the depositor.
«
1943.
If the contract do not point out the place of re-
stitution, it must be made in the very place of the
deposit
1944.
The deposit must be returned to the depositor as
soon as he claims it, even though the contract may
have fixed a determinate interval for the restitution,
unless there exist, in the hands of the depositor, an
598 Book IIL-^Modes of acquiring Property.
attachment or an opposition to the restitution and
removal of the thing deposited.
194S.
An unfaithful depositary is not admitted to the
bene6t of cession.
1946.
All the obligations of the depositary cease, if he
happens to discover and to prove that he is himself
the proprietor of the thing deposited.
SECTION IV.
Of tie Obligtiiims tfthe Party hg whim ike DepoiU iom mad§.
1947.
The party who has made the depout, is bound to
reimburse to the depositary the expenses to which
he has been put for the preservation of the thing de-
posited, and to indemnify him against all losses
which the deposit may have occasioned him.
1948.
The depositary may retain the deposit until the
complete settlement of what is due to him by reason
of the deposit.
jKUc XI. — Dqmit and Sequestration. 529
SECTION V.
Of nec€t»ary Deposit.
1949.
Necessary deposit is that which has been com-
pelled by some accident ; such as a fire, a ruin, pil-
lage, shipwreck, or other unforeseen event.
1950.
Proof by witnesses may be received in regard to
necessary deposit, even though question be of value
exceeding one hundred and fifty francs.
1951.
Necessary deposit is moreover governed by all the
rules previously set forth.
1952.
Keepers of inns and hotels are responsible, as de-
positaries, for property brought by the traveller wha
lodges in their house : the deposit of effects of this
description must be regarded as a necessary deposit.
195S.
They are responsible for the stealing or damage
of the property of the traveller, whether the robbery
were committed or the damage were caused by the
domestics and officers of the establishment, or by
strangers going and coming within the inn.
MM
580 Baok IIL^^Modts of acquiring Property.
1954.
They are not responsible for robberies committed
with armed force, or any other superior force.
CHAPTER III.
Of Sequestration.
SECTION h
Of ike d^erent Ducripiknu nf Sequeitratiom.
1955.
Sequestration is either conventional or judicial. .
SECTION II.
Of ConvefUkmal SeqwedroHm.
1956.
Conventional sequestration is a deposit made by
one or more persons of a thing in dispute, in the
hands of a third person, who binds himself to restore
it, after the litigation terminated, to the person to
whom. the right to obtain it shall be adjudged.
1957.
Sequestration cannot be gratuitous.
1958.
When it is gratuitous, it is subject to the rules of
deposit properly so called, saving the distinctions
hereafter declared.
Tiik XL— Deposit and Sequestration. 581
1959.
Sequestraticm may have for its object, not only
moveable effects, but even immoveables.
I960.
The depositary charged with sequestration, can-
not be discharged, before the litigation terminated,
except with the consent of all the parties interested,
or for a cause adjudged lawful.
SECTION IIL
0/ Judicial Sefuestration on Deposit,
1961.
TTie courts may order sequestration —
1st. Of moveables seized from a debtor;
2d. Of an immoveable or of a moveable object of
which the property or the possession is disputed be*
tween two or more persons ;
Sd. Of things which a debtor o£fers for his libera-
tion.
1962.
The establishment of a judicial sequestration pro-
duces between the party whose goods are seized and
him who is entrusted with them reciprocal obliga-
tions. The sequestrator must employ in the preser-
vation of the effects seized the care of a good hus-
bandman.
He must produce them, either in discharge of the
party distraining for sale, or to the party against
MM 2
588 Book III. — Modes of acquiring Property.
whom the execution was made^ in case the distress
is replevied.
The obligation of the party distraining consists in
paying to the officer in possession the salary fixed by
the law.
196S.
Judicial sequestration is given, either to a person
on whom the parties interested have agreed among
themselves, or to a person oflScially named by the
judge.
In either case, the party to whom the tiling has
been entrusted, is subject to all the obligations which
conventional sequestration imports.
TITLE XII.
OF ALEATORY CONTRACTS.
Decreed ike lOih of March, 1 804. Promulgated the fOth of the same
Month*
1964.
An aleatory contract is a mutual agreement, of
which the consequences, as regards advantages and
losses, either for all the parties, or for one or more
among them, depend on an uncertain event.
Such are
Contracts of assurance.
Loans on bottomry,
Play and betting.
Contracts for life annuities.
The two first are governed by maritime laws.
Titk XII.—0/aleatotif Contracts. 533
CHAPTER I.
Of Pica/ and Betting.
1965.
The law does not allow an action for a debt at
play or for the payment of a wager.
1966.
Games proper in the exercise of feats of arms,
foot-races, horse ot chariot-races, tennis and other
sports of the same nature, which require address and
agility of body, are excepted from the preceding
ordinance.
Nevertheless the court may reject the demand,
when the sum appears to it to be excessive.
1967.
In no case can the loser recover what he has
voluntarily paid, unless there have been on the part
of the winner foul play, fraud, or cheating.
CHAPTER II.
Of the Contract for Life Annuities.
SECTION I.
Of the Conditions requisite to the Validity of the Contract.
1968.
An annuity may be granted by chargeable title,
for a sum of money, or for a moveable capable of
being valued, or for an immoveable.
584 Book III. — Modes of acquiring Property.
1969.
It may also be granted by gratuitous title purely,
by donation during life, or by will. It must then be
invested with the forms required by law.
1970.
In the case of the preceding article, the annuity
is reducible, if it exceed that of which it is lawful to
dispose : it is null if it is for the benefit of a person
incapable of receiving it.
1971.
The annuity may be granted, either on the life of
him who paid the price thereof, or upon the life of
a third person who has no right to the enjoyment
thereof.
1972.
It may be granted on oqe or more lives.
1978.
It may be granted for the benefit of a third per-
son, although the price thereof be supplied by an-
other person.
In the latter case, though it have the character-
istics of a free gift, it is not subjected to the forms
required for such donations ; saving the cases of re-
duction and nullity set forth in article 1970.
1974.
Every contract for an annuity created on the life
of a person who was dead at the time of the con*
traot, is inefiectual.
Titk Xll.^-^^akatery Contracts. 585
1975.
It is the same with respect to the contract by
which an annuity has been created on the life of a
person attacked by a disorder of which he died
within twenty days from the date of the contract.
1976.
The annuity may be granted at any rate on which
it may please the contracting parties to fix.
SECTION II.
Of the Effects of the Contract between the contracting Parlies.
1977.
The party for whose benefit the annuity has been
granted for a price^ may demand to have the con-
tract rescinded, if the granter do not give him the
stipulated securities for its execution.
1978.
The single default in payment of the arrears of
the annuity does not authorise the party in whose
favour it was granted to demand the reimbursement
of his capital, or to re-enter into the property aliened
by him: he has only the right to seize and cause
to be sold the goods of his debtor, and to cause
him to order or consent, from the produce of the
sale, the expending of a sum sufficient for the pur*
poses . of the arrears.
686 Book III.^^Moikif qfMqtdfing Property.
1979.
The grantor cannot disengage himself from the
payment of the annuity by offering to reimburse the
capital, and by renouncing his demand for the ar-
rears paid ) he is bound to satisfy the annuity during
the whole life of the person or persons on whose
lives the annuity has been granted, whatever be the
duration of the lives of such persons, and however
burthensome the payment of the annuity may be-
come.
1980.
An annuity is only acquired to the proprietor in
proportion to the number of days he has lived.
Nevertheless, if it were agreed that it should be
paid in advance, the payment which ought to have
been made, becomes due from the day on which the
payment thereof ought to have been made.
1981,
The annuity cannot be stipulated as recoverable,
except when it has been granted by gratuitous title.
1982.
The annuity is not extinguished by the civil death
of the proprietor : the payment thereof must be con-
tinued during his natural life.
1983.
The proprietor of an annuity cannot demand the
arrears thereof without proving his existence^ or that
of the person on whose life it has been granted.
Htk Xlll^—Of Procuration. 637
TITLE XIII.
OF PROCURATION.
Decreed the lO^A ofMarch^ 1804. Promulgated the 20th of the
tame Month.
CHAPTER I.
Of the Nature and Form qf Procuration.
1984.
Procuration or commission is an act by which one
person gives to another the power to do something
for the constituent party, and in his name.
The contract is not binding without acceptance
on the part of the agent.
1985.
The procuration may be given either by a public
act, or by writing uhder private signature, even, by
letter. It may also be given verbally ; but testimo-
nial proof is only received thereon conformably to
the title ^^ Of Contracts or conventional Obiigations in
general"
The acceptance of procuration ipay be mei:ely
tacit, and result from the performance which has
been given to it by the agent.
1986.
Procuration is gratuitous, if there be no contrary
agreement.
5S8 Book III.— Modes qf acquiring Property.
1987.
It is either special aod for one afi&ir, or certain
affairs only, or general and for all the afiairs of the
party giving it.
1988.
Procuration conceived in general terms embraces
only acts of administration.
If the question be of alienating or mortgaging, or
of some other act of ownership, the procuration must
be express.
1989.
The agent can do nothing beyond what is con-
tained in his commission : the power of transacting
does not include that of compromising claims.
1990.
Women and minors emancipated may be chosen
as agents ; but the principal has no action against
his agent, a minor, except in conformity to the ge-
neral rules relative to the obligations of minors, and
against a married woman who has accepted a com-
mission without the authority of her husband, only
in conformity to the rules established under the title
^ Of the Contract of Marriage, and qfthe respective
Rights of married Persons.^*
Title XIIL^Of Procuration. 589
CHAPTER 11.
Of the Obligations of thfi Agent.
1991.
The agent is Bound to accomplish the commission
as far as he is charged therewith, and is answerable
for the damages which may result from his non-per-
formance*
He is in like manner bound to finish the thing
begun at the death of the principal, if there be
hazard in the delay.
1992.
The agent is answerable not only for fraud, but
also for mistakes which he commits in his manage-
ment.
Nevertheless, the responsibility relative to mis-
takes is applied less rigorously to him whose com-
mission is gratuitous than to him who receives a
salary.
1993.
Every agent is bound to render an account of his
conduct, and to make statement to his principal of
all which he has received by virtue of his procura-
tion, even though what he shall have received were
not due to the principal.
1994.
The agent is answerable for the deputy employed
by him in his management, 1st, when he has not
540 Book IIL— Modes qfacqviring Property.
received power to substitute any one for himself;
2d, when such pow.er was conferred upon him with-
out designation of a person, and when such person
of whom he has made selection was notoriously
incompetent or insolvent.
In all these cases, the principal may act directly
against the person whom the agent has deputed*
1995.
When there are several attorneys or agents esta-
blished by the same act, the obligation of each is
only joint and several so far as it is expressed.
1996.
The agent is indebted in interest on sums which
he has employed for his own use, dating from such
employment } and on such in which he is debtor on
the balance^ computing from the day on which the
balance became against him.
1997.
The agent who has given to the party with whom
he contracts in this character, a sufficient knowledge
of his powers, is not bound by any warranty, for
what has been done beyond them, unless he has
personally subjected himself thereto.
Title XIIL— Of Procuration. 541
CHAPTER HI.
Of the Obligations of the Principal.
1998.
The priDcipal is bound to execute engagements
contracted by the sgenU conformably to the power
which has been given him.
He is not bound for what may have been done
beyond them, except so far as he has expressly or
tacitly ratified it.
1999.
The principal must reimburse to the agent ad-
vances and expenses which the latter has made in
execution of the commission, and pay him his salary
wherever a promise thereof has been made him.
If there be no fault imputable to the agent, the
principal cannot relieve himself from making such
reimbursement and payment, even though the affiiir
shall not have succeeded, nor make reduction of
such charges and advances under pretext that they
might have been less.
2000.
The principal must also indemnify the agent
ag^jlnst losses which the latter has sustained by rea^
son of his management, where no imprudence is inj-
putable to him.
2001.
Interest is claimable from the principal on ad-
vances made by the agent, computing from the day
of verifying such advance;^.
548 Book IIL-^Modes of acquiring Property.
2002.
Where an agent has been appointed by several pei^
sons for a joint business, each of them is bound
jointly and severally towards him as to all effects of
the commission,
CHAPTER IV.
Of (he dijbrent Manners in which Commiman is
terminated.
200S.
Commission is put an end to,
By the revocation of the agent.
By the renunciation of the commission by the
latter,
By the natural or civil death, the interdiction or
embarrassment, either of the principal or of the
agent
2004.
The principal may recal his procuration whenever
he thinks proper, and compel, if there be ground, the
agent to remit to him, either the writing under pri-
vate signature which contains it, or the original of
the procuration, if it were delivered by public act,
or a copy, if he have kept a minute thereof.
2005.
Revocation notified to the agent alone, cannot be
opposed to third persons, who have treated in Igno-
rance of such revocation, saving to the principal his
remedy against the agent.
Title XIlL-^Of Procuration. 54S
2006.
The appointment of a new agent for the same bu-
siness, is equivalent to a revocation of the first, com-
puting from the day on which it has been notified to
the latter.
2007.
The agent may renounce the commission, by no-
tifying his renunciation to the principal.
Nevertheless, if such renunciation prejudice the
principal, he must be indemnified therefore by the
agent, unless the latter can prove himself under an
utter incapacity of continuing the commission with*
out thereby encountering considerable prejudice
himself.
2008.
If the agent be ignorant of the death of his prin-
cipal, of of any of the causes which put an end to
the commission, what he has done in such ignorance
is valid.
2009.
In the cases above, the bon& fide engagements of
the agent with third persons are to be executed.
2010.
In case of the death of the agent, his heirs must
give advice thereof to his principal, and provide in
the mean time according to circumstances for the
interest of the latter.
644 Book IIL^^Modes of acquiring Property.
TITLE XIV.
OF SECURITY.
Ikcrtid ths l%ih FOruarjf, ISM. Promu^ied the 24A of tJ^
same Month.
CHAPTER I.
Of the Nature and Ea:tent qf Secuiity.
2011.
He who becomes security for an obligation, sub-
jects himself to the satisfaction of such obligation in
respect of the creditor, if the debtor fails to satisfy
it himself.
2012.
Security can only exist in a valid obb'gation. A
party may, nevertheless, guarantee an obligation,
although it may be annulled by an exception purely
personal to the party bound, for example, in the case
of minority.
2013.
The security must not exceed what is due from
the debtor, nor be contracted under conditions more
burthensome.
It may be contracted for a part of a debt only, and
under conditions less burthensome.
The security which exceeds the debt, or which is
contracted under conditions more burthensome, is
not void : it is only reducible in proportion to the
principal obligation.
2014.
A person may become security without the direc-
Title Xir.^Of Security. 645
tion of the party for whom he binds himself, and
even without his knowledge.
A person may also become security, not only for
the principal debtor, but also for the party who has
secured him.
2015.
Security cannot be presumed ; it must be express,
and the party cannot extend it beyond the limits
within which it has been contracted.
2016.
The indefinite security of a principal obligation
extends to all the appendages of the debt, even io
the costs of the first demand, and to all those poste*
rior to the declaration which is made thereof to the
surety.
2017.
The engagements of sureties pass to their heirs,
with the exception of personal arrest, if the engage-
ment were such that the surety was compelled
thereto.
2018.
A debtor compelled to furnish a security must
produce one who has the capacity to contract, who
has property sufficient to answer for the object of the
obligation, and whose domicile is within the juris-
diction of the court of appeal where it is to be given.
2019.
The solvency of a surety is only estimated by
having regard to his landed property, excepting in a
N N
546 Book III. — Modes qf acquiring Property.
commercial transaction, or where the debt is mo-
derate.
No attention is paid to immoveables disputed, or
respecting which inquiry would become too difficult
by the distance of their situation^
20S0.
When the surety accepted by a creditor, volun-
tarily or by act of law, afterwards becomes inscrf-
vent, another must be given him.
This rule admits of exception in the case only
where the security has merely been given by virtue
of an agreenient by which the creditor required one
particular person as security.
CHAPTER II.
Of the Effect of Security.
SECTION I.
Of tie Efftci 0/ Seeur'Uy between the Creditor and the Surety.
2021.
The surety is only bound towards the creditor to
pay him on the debtor's default, whose property must
previously be seised, unless the surety have re-
nounced the benefit of such seisure, or unless he be
bound jointly and severally with the debtor ; in which
case his engagement is regulated by the principles
which have been established for joint and several
debts.
2022.
The creditor is not obliged to seise the property
Title XIV.— Of Security. 547
of the principal debtor, except when the surety re-
quires it, on the first proceedings commenced against
him.
2023.
The surety who requires the seisure must point
out to the creditor the property of the principal
debtor, and advance money sufficient to make such
seisure.
He must not point out either property of the prin-
cipal debtor, situated beyond the jurisdiction of the
court of appeal' of the place where the payment is to
be made, or property in dispute, nor that pledged
for a debt, and which is no longer in the possession
of the debtor.
2024.
In all cases where the surety has pointed out pro-
perty, as authorised by the preceding article, and
has furnished a sufficient sum for the seisure and sale,
the creditor is, up to the amount of the property
pointed out, responsible, as regards the surety, for
the insolvency of the principal debtor occurring
through his neglect to proceed.
2025.
Where several persons have become sureties for
the same debtor and the same debt, they are boimd
each for the whole of the debt.
2026.
Nevertheless, each of them may, unless he have
N N 2
548 Book III. — Modes of acquiring Property.
renounced the benefit of division, require that the
creditor should previously divide his demand, and
reduce it to the share and portion of each surety.
When, within the time at which one of the sure-
ties has caused division to be pronounced, some
have become insolvent, such surety is bound in his
proportion for such insolvencies; but he can no
longer be required on account of insolvencies occur*
ring subsequently to the division.
2027.
If the creditor have voluntarily and of himself
divided his action, he cannot contravene such divi-
siou', although there were, even anterior to the time
at which he consented to it, insolvent sureties.
SECTION II.
Oftke Effect of Security between Debtor and Surety.
2028.
The surety who has made payment, has his remedy
against the principal debtor, whether the security
were given with or without the knowledge of the
debtor.
This remedy takes place as well with regard to
principal as to interest and expenses; nevertheless
the surety has no remedy except for the expenses
made by him after he has given notice to the prin-
cipal debtor of the proceedings directed against
himself.
. Title XIV.~OJ Security. 549
He has also his remedy for damages, if there be
ground.
2029.
The surety who has paid the debt, is invested
'with all the rights which the creditor had against
the debtor.
2030.
Where there were many joint and several princi-
pal debtors for one and the same debt, the surety
who has guaranteed them all has^ against each of
them, his remedy for the recovery of the whole of
what he has paid.
2031.
The surety who has paid a first time has no remedy
against the principal debtor who has paid a second
time, when he has not advertised him of the pay-
ment which he has so made ; saving his action for
recovery against the creditor.
When the surety shall have paid without being
proceeded against, and without having given notice
to the principal' debtor thereof, he shall not have a
remedy against his debtor in the case where, at the
moment of payment, such debtor shall hav^ had
means of making declaration of the extinction of
his debt ; saving his action for recovery against the
creditor.
2032.
The surety, even before having paid, may implead
his debtor in order to be indemnified by him,
1st. When he is proceeded against at law for the
payment ;
550 Book IIL^Modes qf acquiring Property.
2d. When the debtor has become bankrupt, or is
in embarrassment ;
8d. When the debtor is obliged to send him his
discharge within a certain time }
4th. When the debt is become due by the lapse
of the term subject to which it was contracted ;
5th. At the end of ten years, where the principal
obligation has no fixed term of lapse ; unless the
principal obligation, such as a guardianship, should
not be of a nature capable of being extinguished
before a determinate period.
SECTION HI.
0/the Effect of Security between Co^Sureties.
2033.
Where several persons have become security for
the same person and for the same debt, the surety
who has acquitted the debt, has his remedy against
the other sureties, each for his share and portion ;
But this remedy does not take place when the
surety has paid in one of the cases set forth in the
preceding article.
CHAPTER III.
Of the Extinction of Security.
2034.
The obligation which results from security, is ex-
tinguished by the same causes as other obligations.
Titk X/r.— or Security. 551
S085.
The blending of interests which is effected in the
person of the principal debtor and his surety, when
they become heirs of each other, does not extinguish
the action of the creditor against the party who has
become security for the surety.
2036.
The surety may oppose to the creditor all the
objections which appertain to the principal debtor,
and which are inherent to the debt : *
But he cannot oppose objections which are purely
personal to the debtor.
2037.
The surety is discharged,' when substitution into
the rights, mortgages, and privileges of the creditor,
can, in consequence of the act of such creditor, no
longer operate in favour of the surety.
2038.
The voluntary acceptance which the creditor has
made of an immoveable or of any effect whatsoever
in payment of the principal d6bt, discharges the
surety, although the creditor should hereafter be
evicted therefrom.
2039.
The simple prolongation of the term allowed by
the creditor to the principal debtor, does not dis-
551 Book IIL-^Modes of acquiring Property.
charge the surety, who mayt in such case, sue the
debtor in order to compel payment.
CHAPTER IV.
«
Of legal and judicial Security.
S040.
In all cases where a person is obliged, by the law
or by a sentence, to provide a surety, the surety
offered must fulfil the conditions prescribed by arti-
cles 2018 and £019.
When judicial security is in question, the surety
must moreover be liable to personal arrest.
S041.
He who cannot find a surety is permitted to give
in his place a sufficient pledge as security.
2042.
The judicial surety cannot demand seisure and sale
of the goods of the principal debtor.
2043.
He who has simply become security for the judi-
cial surety, cannot demand seisure and sale of the
goods of the principal debtor and of the surety.
Titie XV.^4)fcimpoundk^ Actions. 558
TITLE XV.
OF THE COMPOUNDING OF ACTIONS.
Decreed 1 5th March, 1 804. Promulgated the 25th of the
same Month.
2044.
Compounding is a contract by which the parlies
terminate a litigation begun^ or prevent a litiga*
tion about to commence.
This contract must be reduced to writing.
2045.
In order to compound, it is necessary to have the
capacity of disposing of the objects comprised in the
composition.
The guardian can only settle for the minor or in-
terdicted person conformably to article 467^ under
the title '' 0/ Minority, Guardianship, and Emancipa^
tion;'* and he can only settle with the minor on his
arriving at full age^ on the accounts of his guardian-
ship, conformably to article 472, in the same title.
The communes and public establishments cannot
compound without the express authority of govern-
ment.
2046.
A party may compound for the civil claims result-
ing from a wrong.
Such composition does not prevent the prosecution
of the public ministry.
554 Book III^^Modes tf acquiring Proper^.
2047.
A party may add to bis composition a stipulation
for a penalty against him who shall fail to execute it.
2048.
Compositions are bounded by their object: the
renunciation which is therein made of all claims,
actions, and pretensions, imports only what relates
to the dispute which has given rise to it.
2049.
Compositions only regulate the disputes which are
therein comprised, whether the parties have mani-
fested their intention by special or general expres-
sions, or whether such intention can be understood
as a necessary consequence of what is expressed.
2050.
* If the party having compounded for a claim which
he had in his own right, becomes afterwards pos-
sessed of a similar claim in right of another person,
he is not bound by the anterior composition so far
as regards the claim acquired.
2051.
Composition made by one of the interested parties
does not bind others interested, and cannot be ob-
jected by them.
2052.
Compositions have, between the parties, the au-
thority of a matter decided in the last resort.
litie -Xr.-^-0/* compounding AcHons. 555
They cannot be impeached on the ground of error
in law, or on the ground of injury.
2058.
Nevertheless, a composition may be. rescinded
where there is mistake in the person, or in the ob-
ject of the litigation.
It may be so in all cases where there is fraud or
violence.
£054.
There is equal foundation for an action of annul-
ment against a composition, when it was made in exe-
cution of a void title, unless the parties have ex-
pressly treated respecting such nullity.
2055.
Composition made upon documents which have
subsequently been discovered to be false, is entirely
null.
2056.
Composition on the ground of a suit terminated
by a judgment given with the authority of a matter
decided, of which the parties or one of them had no
knowledge, is void.
If the judgment of which the piuties had no
knowledge were subject to appeal, the composition
shall be valid.
2057.
Where parties have compounded generally upon
all matters which they may have between them, do-
cuments which were then unknown to them, and
556 Book IIL — Modes of acquiring Property.
which may have been subsequently discovered, are
not a ground of rescission, unless tfae^ have been
kept back by the act of one of the parties ;
But the composition shall be null if it only relate
to an object respecting which it shall be made mani-
fest by documents subsequently discovered, that
one of the parties had no claim.
2058.
Error in calculation in a composition must be
rectified.
TITLE XVI.
OF PERSONAL ARREST IN A CIVIL MATTER.
Decreed l^A tf February^ 1804. PromulgaUd the 23(/ tfihe
same Month*
2059.
Personal arrest takes place, in a civil matter, for
steUionate.
SteUionate is,
Where a person sells or mortgages an immoveable,
of which he knows himself not to be the owner;
Where a party offers as unencumbered, property
mortgaged, or where he declares the mortgages as
less than those with which such properties are ac-
tually charged.
S060.
Personsd arrest takes place in like manner —
1st. For necessary deposit;
Title XVL-^Of Personal Arrest. SSr
Sd. In case of restitution, for abandonment of in-
heritance, ordered by the court, of an estate whereof
the proprietor has been despoiled by force, for the
recovery of the profits which have been received
during the unlawful possession, and for the payment
of damages adjudged to the proprietor ;
3d. For the recovery of money entrusted to the
hands of public persons appointed for that pur-
pose ;
4th. For the production of things deposited with
sequestrators, commissaries, and other bailees ;
5th. Against judicial sureties and against the
sureties of persons liable to arrest, when they have
been subjected to such arrest ;
6th. Against all public officers for the production
of their minutes, when it has been ordered ;
7th. Against notaries, attornies, and ofiScers, for
the restoration of documents entrusted to them, and
of money received by them for their clients, in the
course of their duties.
2061.
Those who by a judgment given on petition, and
passed with the authority of a matter decided, have
been sentenced to quit an estate, and who refuse to
obey, may by a second judgment be personally ar-
rested, fifteen days after notice of the first judgment
personally given or at the party's domicile.
If the estate or the inheritance be distant more
than five myriameters from the domicile of the
party sentenced, there shall be added to the fifteen
days one day for five myriameters.
558 Book IIL'^Modes qf acquiring Property.
2068.
Personal arrest cannot be directed against farmers
for the arrears of the rent of rural property, if it
have not been formally stipulated in the act of
lease.
Nevertheless, farmers and under-tenants may be
personally arrested, on failure by them to produce,
at the end of the lease, the beasts in chepteU seeds,
and agricultural instruments, which were entrusted
to them, unless they can prove that the d^ciency
in such articles does not proceed from their act.
8068.
With the exception of the cases determined by the
preceding articles, or which may be so hereafter by
a formal law, it is forbidden to all judges to pro-
nounce personal arrest, to all notaries and registrars
to take acts in which it shall be stipulated, and to
all Frenchmen to consent to such acts, although
they should have been, passed in a foreign country ;
the whole on pain of nullity, costs, and damages.
2064.
Even in the cases above set forth, personal arrest
cannot be pronounced against minors.
2065.
It cannot be pronounced for a sum less than
three hundred francs.
8066.
It cannot be pronounced against persons of seventy
Titk XVL^Of Personal Arrest. 559
years of age, against women and girls, except in case
of stellionate.
It is sufficient that the seventieth year have begun
in order to enjoy the indulgence granted to persons
of seventy years.
Personal arrest on account of stellionate during
marriage, does not take place except against women
who have separate property, or when they have pro-
perty of which they have reserved the free admini-
stration, and by reason^of engagements which relate
to such property.
Women, who having community shall have con-
tracted obligations jointly and severally with their
husbands, shall not on account of such contracts
be reputed guilty of stellionate.
2067.
Personal arrest, even in cases authorised by law,
cannot be put in force except by virtue of a judg-
ment.
2068.
Appeal does not suspend the arrest pronounced by
a judgment provisionally executory on giving secu-
rity.
2069.
Exercise oi personal arrest does not prevent or
suspend prosecutions and executions against the
goods.
2070.
No infringement is made of the particular laws
which authorise personal arrest in matters of com-
560 Book IIL^^Modes of acquiring Property.
merce, nor of the laws of correctional police, nor of
those which relate to the administration of the pub*
lie money.
TITLE XVII.
OF FLEDOINO.
Decreed Mareh \Bth, 1804. Promuigaied 2&h of the same mantk.
2071.
Hedging is a contract by which a debtor places a
thing in the hands of the creditor as security for
his debt.
S078.
The pledging of a moveable is called pawning.
That of an immoveable is called antichresis.
CHAPTER L
OfPceammg^
2079.
Pawning confers upon the creditor the right of
paying himself out of the thing which is the object
thereof^ in preference to all other creditors.
2074.
This privilege only takes place where there is a
public act or one under private signature, duly en-
rolled, containing a declaration of the sum dne, as
Title XVIL^Of Pkdging. 561
well as the description and nature of the things put
in pledge, or a statement annexed of their quality,
weight, and measure.
The reduction of the act to writing and its en-
rdment are nevertheless only prescribed in a matter
exceeding the value of one hundred and fifty francs.
2075.
The privilege set forth in the preceding article is
only established over moveables incorporeal, such as
personal credits, by an act public or under private
signature, also enrolled, and notified to the debtor
of the credit assigned in pledge.
2076.
In all cases the privilege only subsists over the
pledge where such pledge has been placed and has
continued in the possession of the creditor, or of
a third person agreed on between the parties.
2077.
The pledge may be given by a third person for the
debtor.
2078.
The creditor cannot in default of payment dispose
of the pledge ; saving to him the power of procuring
an order of the court that such pledge shall continue
with him in payment, and up to its due amount ac*
cording to an estimate made by competent persons,
or that it shall be sold by auction.
Every clause which shall authorise the creditor to
o o
56t. Book III.— Modes ofdcfttirh^ Property.
appropriate the pledge to himself, or to dispose
thereof without the above-mentioned formalities, is
void.
2079.
Until the deprivation of the debtor, if there be
ground for it, he continues proprietor dT the pledge,
which is in the hands of the creditor, a deposit
merely for the assurance of the preferable claim of
the latter.
soao.
' The creditor is answerable, accordiag to the ruled
established under the title .^* Of CpfTventional ObUga-^
tions in General/* for the loss or deterioration of the
pledge occurring through his negligence.
On the other hand, the debtor must settle with
the creditor the useful and necessary expenses whicU
the latt^ has been put to for the preservation of the
pledge*
2081.
If a credit assigned in pledge be in question, and
such credit carry interest, the creditor must deduct
such interest from that which is due to himself.
If the debt for the security of which the credit
has been assigned in pledge, does not itself carry
interest, the deduction is made from the capital of
the debt.
2082.
Hie debtor cannot claim the restitution of the
pledge, unless the holder there<^ abuse it, until he
TUk XFII.-<tf Pledging. 56S
has made entire payment, as well in principal as in-
terest and expenses, of the debt for the security of
which the pledge was given.
If there exist on the part of the same debtor to-
wards the same creditor another debt contracted
subsequently to the handing over of the pledge, and
which has become due before the payment of tiie
&st debt, the creditor shall not be liable to be dis*
seized of his pledge before being entirely piud both
debts, even though there should not have been any
stipulation to bind the pledge for the payment of
the second.
808S.
The pledge is indivisible notwithstanding the di«
visibility of the debt among the heirs of the debtor
or those of the creditor.
The heir of the debtor who has paid his portion of
the debt, cannot demand restitution of his portion
of the fledge^ so long as the debt is not entirely sa-
tisfied*
On the other hand, the heir of the creditor who
has received his portion of the debt cannot return
\be pledge to the prejudice of those of his coheirs
who are not paid*
8084.
The dispositions above-mentioned are not applica*
ble to subjects of commerce, nor to houses authorised
to lend on pledge^ and. with regard to which the laws
and regulations relative to them itre to be followed*
oo 2
564 Book III. --Modes tf acquiring Property.
CHAPTER n.
Of Antichresis.
8085.
Antichresis can only be established in writing.
The creditor only acquires by this contract the
power of enjoying the fruits of the immoveabley on
condition of deducting them annually from the inter-
est, if any be due to him, and afterwards from the
cafHtal of his credit.
2086.
The creditor is bound, if it be not otherwise agreed
thereon, to pay the contributions and annual charges
of the immoveable which he holds in antichresis.
He must in like manner, under pain of damages,
provide for the maintenance and useful and neces-
sary reparations of the immoveable ; saving a previous
deduction from these fruits of all the expenses rela-
tive to these different objects.
8087.
The debtor cannot, before the entire acquittance
of the debt, claim the enjoyment of the immoveable
which he has placed in antichresis.
But the creditor who is desirous of discharging
himself from the obligations expressed in the pre-
ceding article, may always, unless he have renounced
such right, compel the debtor to resume the enjoy-
ment of his immoveable.
Titk XVII.—Of Pkdging. 565
2088.
The creditor does not become proprietor of the
immoveable simply by default in payment at the
term agreed on ; every contrary clause is null : in
such case, he may sue for the deprivation of his
debtor by legal means.
S08d.
Where the parties have stipulated that the fruits
shall be balanced against the interest, either entirely
or up to a certain amount, such agreement may be
executed like every other which is not prohibited
by the laws.
2090.
The dispositions of articles 2077 and 2088 are ap-
plicable as well to antichresis as to pawning.
42091.
Nothing which is decreed in the present chapter,
can prejudice the rights. which third persons may
have over the immoveable placed in antichresis.
If the creditor, invested with such title, has more-
over over the estate privileges and mortgages legally
established and reserved, he may exercise ihem in
tbeir orde^, and in the same manner as every. other
creditor.
566 Boot IIL^^Modes qf^aeguiring Property.
TITLE XVIIL
OF PRIVILEGES AND MORTGAGES.
Decreed the }9tk 0/ March, 1804. Ptmmdgttted the 29th qfthe
eame Month.
CHAPTER L
a
General Enactments.
m
I
so9a.
Whosoever binds himself personally, is required
to fulfil his engagement out of idl his property move-
able and immoveable, present and future.
Tbe goods of the debtor are the common pledtge
of hi^ creditors ; and the value thereof is equally dis-
tributable among ihem, unless there exist among
the creditors lawful causes of preferende*
8094.
llie lawful causes of preference are privileges and
mortgages.
TUf( XFIIL^OfJ*rhileges and Mortgages. 567
CHAPTER II.
0/ Privileges,
a096.
Privilege is a right which the quality of his credit
confers upon a creditor of being preferred to the
others, though mortgage-creditors.
r. 8096.
Between privileged creditors, the preference
is regulated by the different qualities of the pri-
vileges.
$
3097-
' Privileged creditors who are in the same rank, are
paid rateably.
# * •
8098.
Privilege arising from the claims of the public ex-
chequer and the order in whiph it is exercised, are
governed by the laws relating thereto.
' Nevertheless the exchequer cannot obtain privi-
lege to the prejudice of rights previously acquired by
third persons.
■
2099.
Privileges may exist either over moveables or im-
moveables.
668 Book III. — Modet qfac^ring Properly.
SECTION L
Of Prmlefe9 over Mufoeabki.
2100.
Privil^es are either general, or peculiar to certain
moveables*
<
( I. Of general Privilegee oter Moveebles.
2101.
Privileged credits over moveables in general are
those hereafter expressed, and are eitercised in the
following order :
1st. Law expenses ;
2d. Funeral expenses ;
Sd. Expenses of whatever kind of the last sick«
ness, concurrently among those to whom they are
due;
4th. The salaries of persons in service, for the
year elapsed, and what is due for the current year ;
5th. Supplies afibrded for the subsistence of the
debtor and his family ; that is to say, during the last
six months, by retail shopkeepers, such as bakers,
butchers, and others ; and during the last year, by
masters of boarding houses and wholesale dealers.
§ IL Of Privileges orer cerUin Moveables*
fil02.
«
Privileged credits over certain moveables are,
1st. The hire and rents of immoveables, on the
fruits of the year's harvest, and on the value of all
liOe XVIII.-rOf PrMkges and Mortgages. 569
the stock and furniture of the house and farm, and
of all that which serves to the cultivation of the farm;
that is to say» to the amount of all which has ac-
crued, or which may hereafter accrue, if the leases
are authentic, or if, being under private signature,
they have a certain date ; and in both cases the other
creditors have a right to under4et the house or farm
for the remainder of the lease, and to make profit
for themselves of the leases and rents, on condition
however of paying to the proprietor all which shall
still be due to him ;
And in default of authentic leases, or when being
under private signature they have not a certain date^
for a year commencing from the expiration of the
current year j
The same privilege takes place with regard to te-
nant's repairs, and with regard to all which relates
to the execution of the lease ;
Neverthdess, sums due for seed-corn or for the ex-
penses of the harvest of the year, afe paid from thd
value of the harvest, and those due for implements,
from the value of the implements, with a preference
to the proprietor in both cases }
The proprietor may seize the moveables which
furnish his house or stock his farm, when they have
been removed without his consent, and he retains his
privilege over them, provided he have laid claim to
them; that is to say, in the case of moveables,
stocking a farm, within an interval of forty days ;
and within one of fifteen, in the case of moveables
furnishing a house ;
570 Book III. — Modes of acquiring Propertif.
8d. The credit upon a pledge of which the cre-
ditor has got possession ;
3d. The expenses incurred by the preservation of
the article ;
4th. The price of moveable effects not paid for, if
ihey are still in the possession of the debtor, whether
he have purchased them for a term or not ;
If the sale were made without a term, the seller
may himself claim such effects as long as they are in
the possession of the buyer, and prevent a resale
thereof, provided the claim be made within eight
days from the delivery, and that the effects are
found in the same state in which such delivery was
tnade}
The privilege of the seller is not exercised, how-
ever, until after that of the proprietor of the house
or of the farm, unless it be proved that the proprie*
tor had knowledge that the moveables and other
objects furnishing his house or stocking his fkrm,
did not belong to the occupier }
' No innovation is made upon the laws and usages
of commerce with regard to claim ;
5th« That which is furnished by an innkeeper, on
the effects of the traveller which have been brought
into his inn ;
6th. Charges of carriage and additional expenses,
on the thing conveyed;
' 7th. Credits resulting from want of integrity, and
jhistakes committed by public functionaries in the ex-
ercise of their functions, on the funds deposited aase-
curity, and on the interest which may be due tberecAi.
Titie XVIU.r^Of Pnvikg€$ and Mortgages. 571
SECTION 11.
Of PrivSeges over ImmoveMes.
S103.
Creditors having privileges over immoveables are,
IsU The seller, over the immoveable sold, for the
pajment of its ^rice ;
If there be several successive sales, of which the
price is due in whole or in part, the first seller is pre-
ferred to the second, the second to the third, and so
in order ;
, 2d* Those who have supplied money for the ac-
quisition of an immoveable, provided it be authen*
jtiqally verified, by the act of loan, that the sum was
designed for such use, and by the acquittance of the
seller, that such payment was made with money bor-
rowed }
8d. Coheirs, over the immoveables of the succes-
sion, for the warranty of the distributions made
among them, and for the surplus and balance of
the lots ;
4th. Architects, contractors, masons, and others
employed in building, rebuilding, or repairing houses^
canals, or any other works whatsoever, provided ne-
vertheless that an estimate have been previously
4rawn up by a competent person officially nominated
by the court of first instance within whose jurisdic-
572 Book IIL^Modes if acquiring Proper^.
tion such buildings are situated, for the purpose of
verifying the state of the places in relation to the
works which the proprietor shall declare he has an
intention to form, and that such works have been,
within six months from their completion, admitted
by a competent person likewise nominated officially ;
But the amount of the privilege must not exceed
the value set forth by the second statement, and it is
reduced to the surplus value existing at the period
of the alienation of the immoveable, and resulting
from the works which have been done therein.
5th. Those who have lent money to pay or reim*
burse workmen enjoy the same privilege, provided
such employment be authentically verified by the
act of loan, and by the acquittance of the workmen,
in the same manner as has been mentioned above
with respect to those who have lent money for the
acquisition of an immoveable*
SECTION ni.
O/* PrkSegei which extend ever MoveMei #t tueff as ImMcfoeaUeu
2104.
Privileges which extend over moveables and im-
moveables are those enumerated in article 2101.
2105.
When in default of moveables the privileges enu-
merated in the preceding article are presented for
TiOe XVIIL--Of Privileges and Mortgages. 573
payment from the price of an immoveable in con-
currence with creditors having prinlege over an im-
moveable, the payments are made in manner fol-
lowing :
Ist. The law expenses and others enumerated in
article 2101 ;
Sd. Credits pointed out in article 2108.
SECTION IV.
Q^ ike Manner in tMch Pritileges arepreserwtL
S106.
Among creditors, privileges produce no effect with
regard to immoveables except so far as they are
made public by enrolment on the registers of the
keeper of the mortgages, in the manner r^ulated by
the law, and computing from the date of such enroU
ment, subject to those exceptions <mly which follow.
<
aio7.
The credits enumerated in article 2101 are ex«
empted from the formality of enrolment,
2108.
The seller having privilege preserves such privi-
lege by the transcription of the title which has passed
the property to the purchaser, and which verifies
that the whole or part of the price is due to him : in
consequence of which, the transcription of the con-
tract made by the purchaser shall be equivalent to
574 Book IIL-^Modes qf acquiring Property.
inscription on the part of the seller, and on that of
the lender who shall have supplied the monej paid,'
and who shall be substituted into the rights of the
seller, by the same contract : the keeper of the
mortgage^ shall nevertheless be bound, under pain of
all damages towards third persons, to cause an official
insertion on his register, of credits resulting from
the act conveying the property, as well in favour of
the seller as in favour of the lenders, who may also
cause to be made, if it have not been already done,
a transcription of the contract of sale, for the pur-
pose of acquiring the enrolment of what is due to
them from the price.
2109.
The coheir or the coparcener retains his privilege
over the property of each lot or over the property
put up to auction, for the surplus and balance of the
lots, or for the price of the auction, by enrolment
made at his instance, within sixty days, to be dated
from the act of partition or of purchase by auction ;
during which time no mortgage can take place
respecting the property charged with such balance
or adjudged by auction, to the prejudice of the
creditor of the balance or of the price.
8110.
Architects, conti-actors, masons, and other woiik*
men employed in building, rebuilding, or rqiairing
edifices, canals, or other works, and those wfaot, in
order tapay and^dmburse them, have lent money, of
Titk XVIII.-^-Of Privikges and Mortgages. 57*
which the employment has been verified, retain, by
the double enrolment made 1st of the statement
which verifies the condition of the premises ; 2d of
the statement of allowance, their privilege at the
date of the enrolment of the first statemeat.
2111.
The creditors and legatees who demand a separa-
tion of the patrimony of the defunct, conformably to
article 878, under the title ^* Of Sticcessions," retain,
with regard to the creditors of the heirs or repre-
sentatives of the defunct, their privilege over the
immoveables of the succession, by the enrolments
made respecting each of such goods, within six
months, to be computed from the opening of the sucr
cession.
Before the expiration of this interval, no mortgage
can effectually be established over such property by
the heirs and representatives, to the prejudice of
those creditQfs or legatees.
SllS.
The assignees of these different privileged credits
may all exercise the same rights as the parties making
cession, in their place and stead.
2113*
AH privileged credits subjected to the formality of
enrolment, in regard to which the conditions above
prescribed for retaining privilege have not been com*
plied with, nevertheless do not cease to be hypothe*
576 Book IIL— Modes ofacqtdring Proper^.
cary ; but the mortgage takes date with respect to
third persons, only from the period of the enrolments
which ought to have been made* as shall be hereafter
explained
CHAPTER III.
Of Mortgages.
S114.
Mortgage is a real right over immoveables charged
with the acquittance of an obligation.
It is in its nature indivisible, and subsists in*en-
tirety over all the immoveables a£bcted by it, over
each and over every portion of such immoveables.
It pursues them into whatever hands they may
pass.
2115.
Mortgage takes place only in the cases and ac<
cording to the forms authorised by law.
8116.
It is either legal, or judicial, or conventional.
2117.
Legal mortgage is that resulting from the law.
Judicial mortgage is the result of judgments or ju-
dicial acts.
Conventional mortgage is that which depends on
covenants, and on the external form of acts and
contracts.
TV/fe Xyillr-^ Prvoileges (fnd Mortgages. «7T
2118.
The following only are susceptible of mortgage :
1st. Immoveable goods which relate to commerce,
and their appendages reputed immoveable ;
2d* The uwfruct of the same goods and appen-
dages during the time of its continuance^
«119.
Moveables have no liability to mortgage.
' 2180.
No innovation is made by the present code upon
the regulations of the maritime laws concerning
ships and other vessels.
SECTION L
0/kgal Mortgages.
2121.
The rights and credits to which legal mortgage is
applicable, are.
Those of parried women, upon the goods of their
husbands ;
Those of minors and interdicted persons, upon the
goods of their guardians ;
IThose of the nation, of communes, and public
establishments, upon the property of receivers, and
accountable administrators.
TTs
578 Book IIL-^Modes tf acquiring Property.
The creditor^ who has a legal mortgage, may ex-
ercise his right over all the immoveables belonging
to his debtor^ and over those which may belong to
him hereafter, under the modifications which shall
be hereafter expressed.
SECTION IL
Ofjudidal Mortgages.
212S.
The judicial mortgage is the result of judgments,
either upon a hearing, or by default, final or pro-
visional, in favour of the party who has obtained
them. It is the result of acknowledgments or verifi-
cations made in the judgment, of signatures affixed
to an obligatory act under private signature.
It may be exercised over the existing immove-
ables of the debtor, and over those which he may
acquire, saving also the modifications which shall be
hereafter expressed.
Judgments on arbitration do not import mortgage,
except so far as they are invested with a judicial
order for their execution.
Mortgage in like manner is the result of judgments
given in a foreign country, only so far as they have
been declared executory by a French court ; without
prejudice to contrary regulations in political laws, or
in treaties.
Title XVIIL— Of Privileges and Mortgages. 579
SECTION ni.
0/ conveniicnal Mortgages.
«
2124.
Those only are permitted to assent to conven-
tional mortgages who have the capacity of alienating
the immoveables which they subject thereto.
2125.
Those who only possess over an immoveable a
right suspended by a condition, or voidable in cer-
tain cases, or subject to annulment, can only consent
to a mortgage subject to the same conditions, or to
the same annulment.
2126.
The property of minors, of interdicted persons,
and that of absentees, so long as the possession
thereof is only provisionally conferred, cannot be
pledged except for the causes and in the forms esta-
blished by the law, or by virtue of judgments.
2127.
Couventional mortgage can only be consented to
by an act passed in authentic form before two nota-
ries, or before one notary and two witnesses.
2128.
Contracts made in a foreign country cannot give
pp2
580 Book III. — Modes of acquiring Property.
a mortgage upon property in France, unless there be
stipulations contrary to this principle in the political
laws, or in treaties.
2129.
No conventional mortgage is valid, except that
which, either in the authentic document constituting
the credit, or in a subsequent authentic act, declares
specially the nature and situation of each of the im-
moveables actually belonging to the debtor, over
which he grants the mortgage of the credit. Every
article of his present personal property may be by
name subjected to mortgage.
^ Future property cannot be mortgaged.
21S0.
Nevertheless, if the present and unencumbered
goods of the debtor are insufficient for the security
of the debt, he may, on expressing such insufficiency,
consent that the whole of the property which he may
hereafter acquire, shall continue charged as soon as
acquired.
2131.
In like manner, in case the present immove^le
or immoveables, subjected to mortgage, have per-
ished, or sustained deterioration, in such manner
that they have become insufficient for the security
of the creditor, the latter shall be permitted either
to sue immediately for repayment, or to obtain an
additional mortgage.
TiOeXVIIL^^OfPrivikges and Mortgages. 581
2182.
Contrentional mortgage is not valid except so far
as the sum for which it is granted is certain and de*
termined by the act : if the credit resulting from the
obligation is conditional as to its existence, or inde- .
terminate as to its value, the creditor shall not be
perautted to require the enrolment of which men-
tion shall be made hereafter, except to the amount
of an estimated value expressly declared by him, and
of which the debtor shall have a right to make
reduction if there be ground.
« *
2133.
A mortgage acquired extends to all the improve-
ments which may occur in the immoveable mort-
gaged.
SECTION IV.
Of the Order of Mortgages with Regard io each other.
2134.
Among creditors, the mortgage, whether legal, or
judicial, or conventional, takes order only from' the
day^of the enrolment made by the creditor with the
• keeper of. the registers, in the form and in the man-
ner prescribed by the law, saving the exceptions
contained in the following article.
2135.
Mortgage exists, independently of every cnrdl-
ment.
58S Book III^f^Modes of acquiring Property.
Ist For the benefit of minors and interdicted
persons, over the immoveables belonging to their
guardian, in the proportion of his administration,
from the day of his acceptance of the guardianship ;
Sd. For the benefit of women, by reason of their
dowry and matrimonial covenants over the immo-
veables of their husbands, and computing from the
day of marriage.
The wife has no mortgage for sums in dowry
arising from successions fallen to her, or from dona-
tions made to her during marriage, except compu-
ting from the opening of the successions, or from
the day on which the donations have taken place*
She has no mortgage as indemnity for debts
which she has contracted with her husband and for
compensation for her property alienated, except
computing from the day of the obligation or of the
sale*
In no case, shall the regulation of the present
article prejudice rights acquired by third persons
before the publication of the present title.
21S6.
Nevertheless, husbands and guardians are bound
to make public the mortgages with which their pro-
perty is encumbered ; and for this purpose, they are
to require without any delay, at the offices established
for them, enrolment against the immoveables be*
longing to them as well as those which may belong
to them hereafter.
Husbands and guardians, who, having failed to
TUk XVIIL-^OJ Privileges ai}d Mortgaged. 583
require and cause to be made the enrolments dU
rected by the present article^ shall have granted or
suffered to be taken privileges or mortgages over
their immoveables, without declaring expressly that
the said immoveables were charged with the I^al
mortgi^e of their wives or wards, shall be deemed
guilty of stellionate, and as such liable to arrest.
2137.
Supplementary guardians shall be bound, under
their personal responsibility, and under pain of
damages, to take care that the enrolments be made
without delay touching the goods of the guardian,
by reason of his administration, even to cause the
said enrolments to be made.
2138.
On default by the husbands, guardians, and supple-
mentary guardians, in causing the enrcdments ' di-
rected by the preceding articles to be made, they
shall be demanded by the commissioner of govern-
ment in the civil court at the domicile of the hus-
bands and guardians, or at the place where the pro-
perty is situated.
2139.
The relations, either of the husband or of the wife,
and the relations of the minor, or in default of rela^
tioi^ their friends, may require the said enrolments ;
they may .also be demanded by the wife .and by
minors.
564 Book JIL^^Modei of acqidrinff Properijf.
Where, in the contract of marriage, the patties
being of age shall have covenanted that enrolment
shall not be made except over one or certain im-
moveables of the husband, the immoveables which
shall not be indicated for enrolment shall remain
free and dnencumbered by mortgage for the dowry
of the wife, and for her claims and matrimonial sti-
pulations. It cannot be covenanted that no enrol-
ment shall take place.
8141.
The same rule shall apply to the immioveables of
the guardian when the relations, in a family-council,
shall have resolved that the enrolment shall only be
made touching certain immoveables.
2142.
In the case of the two preceding articles, the bw
band, the guardian, and the supplementary guarditti,
shall not be bound to require enrolment, except ^
the immoveables pointed out.
214S.
Where the mortgage shall not have been restricted
by the act nominating the guardian, the latter may,
in the case in which the general mortgage upon his
immoveables shall manifestly exceed the security
sufficient for his administration, demand a restricti(^
of the mortgage to immoveables sufficient to eflect it
full guaranty in favour of the minor.
Titk XVIlIj^Of Privileges and Mortgages. SM
The demand shall be made against the supple-
xnentarj guardian, and it ought to be preceded by a
reBolution of the family.
2144.
Thift husband also in like manner^ with the consent
of his wife, and after having taken the advice of her
four nearest relationis in an assembly of the family,
may demand that the general mortgage upon the
whole of his immoveables, by reason of dower, first
claims, and matrimonial covenants, shall be restricted
to immoveables sufficient for the entire preservation
of the rights of the wife.
2145.
Judgments, on the petitions of the husbands and
guardians, shall not be given without having heard
the commissioner of government, and the parties in-
terested.
In the case in wluch the court shall pronounce
rtdnctioD of the mortgage to certain immoveables,
the enrolments manie, mth regard to all the others,
shall be cancelled.
CHAPTEft IV.
Of the Mode of Enrolment qf Privileges and
Mortgages.
2146.
The enralmentB are made at the office for pi'e-
serving the mortgages, within the jurisdiction of
586 Book III.— Modes tfftcqmriMg Fropcrlg.
18 aituated the property subjected to privilege
or to mortgage. Iliey do not produce any effect if
they are taken within the interval during which acts
made previously to the opening of bankruptcies are
declared null.
It is the same between the creditors of a suc-
cession, if the enrolment were not made by one of
them until subsequently to the opening, and in the
case in which the succession is accepted only with
benefit of inventory.
S147.
All the creditors inscribed the same day exercise
in concurrence a mortgage of the same date, with-
out distinction of an enrolment of the morning and
that of the evening, although such difference shall
be marked by the keeper.
2148.
In order to effect enrolment, the creditor must
produce, either by himself, or by a third person, to
the keeper of the mortgages, the original or an au-
thentic copy of the judgment, or of the act which
gives rise to the privilege or to the mortgage.
Added thereto are two accounts upon stamped
paper, of which one may be upon the copy of the
document ; they must contain,
1st. The name. Christian name, domicile of the
creditor, his profession if he have one, and the elec-
tion of a domicile for him in any place whatsoever
within the jurisdiction of the office ;
jKHe XFIIL^^Qf Privileges and Mortgages. BS7
2d. The name. Christian name, domicile cf the
debtor, his profession, if he have one known, or an
individual and special designation, such as that the
keeper may recognise and distinguish in all cases the
individual encumbered with mortgage ;
3d. The date and nature of the document;
4th. The amount of the capital of the credits ex-
pressed in the document, of estimated by the party
making enrolment, for rents or sums lent, or for
rights eventual, conditional, or indeterniiHate, in the
cases in which such estimate is directed ; as also the
amount of the appendages of such capital sums, and
the period of their becoming due ;
5th. The indication of the description and situa^
tion of the property over which he intends to pre-
serve his privilege or his mortgage.
This last regulation is not imperative in the case
of legal or judicial mortgages: in default of agree-
ment, a single enrolment for such mortgages, affects
all the immoveables comprehended within the juris-
diction of the office.
2149.
Enrolments to be made touching the property of
a party deceased, may be made under the simple de-
signation of the defunct, as was mentioned in num-
ber 2 of the preceding article
2150.
The keeper makes mention, upon his register, of
the contents of the accounts, and returns to the pe-
588 Book IIL^Modes ^acquking Property.
titioner. as well the document or copy of the docu^
menty as one of the accounts, at the foot of which he
certifies having made enrolment.
2151.
The creditor enrolled for a capital producing in*
terest or arrears has a right to be placed for two
years only, and for the current year, in the same
order of mortgage as for his capital ; without preju-
dice to particular enrolments to be taken, importing
mortgage to be computed from their date, for oth^
arrears than those reserved by the first emohiment.
2152.
it is lawful for the party who has demanded en-
rolment, as well as for his representatives or assignees,
Irf authentic act, to change upon the roister of
mortgages the domicile elected by him, on condition
«of choosing and pointing out another within the same
jurisdictioo.
215S.
The right of a mor^ge purely legal belonging
to the nation, to communes, and to public establish-
ments upon the property of parties accountable, those
of minors and interdicted persons upon their guar-
dians, married women upon their husbands, shall be
enrolled, on the production of two lists, containing
only,
1st. The Quristian and surname, profession and
-real domicile of the creditor, and the domicile which
Titk XVIIL— Of Privileges and Mortgages. 569
ahall be dected by him or for him, within the juris-
diction ;
2d. The Christian and surname, profession, domi-
cile, or precise designation of the debtor ;
8d. The nature of the rights to be preserved, and
the amount of their value as relates to determinate
ot^jects^ without being bound to fix it as to those
which are conditional, eventual, or indeterminate.
3154.
Enrolments keep alive mortgage and privilege
daring ten years, computing from the day of their
date : their effect ceases, if such enrolments have not
been renewed before the expiration of such interval.
. 2155.
The expenses of tbe enrolment are charged upon
the debtor if there be no stipulation to the contrary ;
they are advanced by the party making enrolment,
except in the case of legal mortgages, for the enrol-
ment of which the keeper has his remedy against
the debtor. The charges ofthe transcription, which
may be required by the seller, are laid upon the
purchaser.
2156.
The actions to which the enrolments may giv^
«
rise against creditors shall be brought before the
competent tribunal, by summons given personally or
at the last domicile elected on the register ; and this,
QOtwithstonding the decease either of creditors^ or
590 Book III. — Modes of acquiring Property.
of those at whose houses they shall have made elec<
tion of domicile.
CHAPTER V.
0/CancelUng and Reducing Enrolments.
2157.
Enrolments are cancelled • by the consent of the
parties interested, and who have the requisite power
for this end, or by virtue of a judgment in the last
resort or passed with the force of a matter decided.
2158.
In either case, they who require cancellation de-
posit in the office of the keeper a copy of the au-
thentic act containing consent, or that of the judg-
ment
2159.
Cancellation not consented to is to be demanded
in the court within whose jurisdiction the enrolment
has been made, unless such enrolment have taken
place for the security of an eventual or indetermi-
nate sentence, touching the execution or liquidation
of which the debtor and pretended creditor are in
litigation, or are to be judged in another court ; in
which case the demand for cancellation must be
brought there or remitted thither.
Nevertheless, an agreement made between the
creditor and the debtor to bring, in case of dispute.
Titk XVIIL-^OfPrmteges and Mortgages. 591
a petition before a court determined on by them-
selves, shall be executed by them.
2160.
Cancellation may be directed by the courts, when
the enrolment has been made without being founded
either in law, or oo a title, or when it has been so by
virtue of a title, either irregular, or extinguished or
discharged^ or when the rights of privilege or of
mortgage are destroyed by legal means.
2161.
Whenever enrolments made by a creditor, who, ac-
cording to law, would have had right to make them
upon the present and future property of the debtor,
without a covenant of restriction, shall be made over
a greater portion of different estates than is necessary
for the security of the debts, an action is permitted
to the debtor for reduction of the enrolments, or for
the cancellation of that part which shall exceed the
due proportion. The rules concerning jurisdiction
are to be followed as established in article 2159.
The enactment of the present article does not ap-
ply to conventional mortgages.
2162.
Those enrolments are deemed excessive which ex«
tend over several domains, when the value of one
alone or of some of them exceeds by more than one
third in unencumbered property the amount of the
claims in capital and legal charges.
59S Book IIL'-^Modes qf acquiring Propertg.
S16S.
Those enrolments also are reducible as excessiFe
which are made according to an estimate by the cre-
ditor, of claims, which, so far as concerns the mort-
gi^e to be established for securing them, have not
beea regulated by agreement, and which in thdr
nature are conditional, eventual, or indeterminate*
2164.
The excess in this case is determined by the ju^es,
according to circumstances, the probabilities of con-
tingencies and presumptions of fact, in such a man-
ner as to reconcile the probable rights of the cr-editor
with the interest of the reasonable credit to be pre-
served to the debtor; without prejudice to new eni-
rolments to be made with right of mortgage frotn
the day of their date, when the event shidl have:
raiaed uncertain credits to a larger sum.
2165.
The value of immoveables, of which ^comparison
is to be made with that of credits and one third be-
yond, is determined by fifteen times the value of the
revenue declared by the standard of the returns to
the land-tax, or indicated by the quota of contribu-
tion upon such return, according to the proportion
which exists in the communes of the situation be-
tween such standard, or such quota and revenue, for
immoveables not liable to perish^ and ten times such
value for those which are subjept thereto. The
judges, nevertheless, may avail themselves, more*
Title XVIIL— Of Privileges and Mortgages. 593
over, of discoveries which may be drawn from un-
suspected leases, from statements of valuation which
may have been drawn up previously to the arrival
of such periods, and from other similar acts, and
value the revenue at an average rate derived from
the results of such different information.
CHAPTER VI.
»
Of the Effect of Privileges and Mortgages against
third Persons in 'wrongful Possession.
2166.
Creditors having privilege or mortgage enrolled
over an immoveable may follow it into whatever
hands it passes, in order to be arranged and paid
according to the order of their credits or enrolments.
2167.
If the third person in wrongful possession do not
comply with the formalities which shall be hereafter
established, in order to clear his title, he remains,
by the single operation of enrolment, bound as
wrongful possessor for all mortgage debts, and en-
joys the same terms and delays allowed to the ori-
ginal debtor.
2168.
A third person in wrongful possession is bound,
in the same case, either to pay interest and capital
sums due to whatever amount they may reach^ or to
QQ
594 Book III. — Modes qf acquiring Property.
abandon the immoveable subjected to mortgage,
without any reservation.
2169.
In default by the third person wrongfully possessed
to satisfy fully each of these obligations, every
mortgage creditor has a right to cause the immove-
able mortgaged to be sold, thirty days after notice
to the original debtor, and summons given to the
wrongful detainer to pay the debt due or abandon
possession.
2170.
Nevertheless the wrongful possessor who is not
personally bound for the debt, may oppose the sale
of the mortgaged estate conveyed to him, if other
immoveables mortgaged for the same debt remain
in the possession of the principal debtor or debtors,
and may require the previous seizure and sale of
them according to the form regulated under the title
** Of security :** pending such seizure, the sale of the
estate mortgaged is postponed.
2171.
Exception to seizure and sale cannot be made to
a creditor privileged or having a special mortgage
upon an immoveable.
2172.
As respects abandonment by mortgage, it may be
made by all third parties wrongfully possessed who
Title XVIII. — Of Privileges and Mortgages. 595
are not personally bound for the debt, and who have
power of alienation .
217S.
It may be so even after the third party in wrong-
ful possession has acknowledged the obligation or
incurred sentence in this character only : abandon-
ment does not^ up to adjudication, prevent the third
party in wrongful possession from regaining the im-*
moveable on paying the whole debt and costs,
2174.
The abandonment by mortgage is made at the
record-office of the court where such property is
situated, and an act thereof is granted by such court.
On the petition of the more diligent of the inter-
ested parties, there is created for the immoveable
abandoned a curator against whom the sale of the
immoveable is sued for in the forms prescribed for
ejectments.
2175.
Deteriorations proceeding from the act or the
negligence of third parties in wrongful possession to
the prejudice of mortgage or privileged creditors,
afford ground for an action of indemnity against
them : but they cannot recover sums expended and
improvements, except to the amount of the ad-
ditional value resulting from such improvement.
2176.
The fruits of the immoveable mortgaged are only
qq2
596 Book III. — Modes qf acquiring Property.
due from the third party in wrongful possession com-
puting from the day of the summons to pay or to
abandon it, and if the proceedings commenced have
been discontinued during three years, computing
from the making of a new summons.
2177.
Servitudes and real claims which a third party in
wrongful possession had upon it before such posses-
sion, revive after abandonment or adjudication made
against him.
His personal creditors, after all those who are en-
rolled against previous proprietors, exercise their
mortgage in their turn, over the property abandoned
or adjudicated.
2178.
A third party in wrongful possession who has paid
the mortgage debt, or abandoned the immoveable
mortgaged, or been subject to ejectment from such
immoveable, has his remedy for warranty, as of
right against the principal debtor.
2179.
A third party in wrongful possession who is de-
sirous of clearing his title by paying the sum, must
observe the formalities which are established in the
8th. chapter of the present title.
Tiik XVIIL— Of Privileges and Mortgages. 597
CHAPTER VIL
Of the Extinction of Privileges and Mortgages.
2180.
Privileges and mortgages are extinguished,
1st. By the extinction of the principal obligation;
2d. By the renunciation of the mortgage by the
creditor ;
3d. By compliance with the formalities and con-
ditions prescribed to third persons in wrongful pos-
session for the purpose of clearing property acquired
by them ;
4th. By prescription.
Prescription is acquired by the debtor, with regard
to property in his hands, by the time fixed for the
prescription of actions which confer mortgage or
privilege.
As regards property in the hands of a third person
wrongfully possessed, it is acquired in his favour by
the time regulated for the prescription of property
for his benefit: in the case in which prescription
supposes a title, it only begins to run from the day
on which it has been transcribed on the registers of
the keeper.
Enrolments made by the creditor do not interrupt
the course of prescription established by the law in
favour of the debtor or of a third party in wrongful
possession.
598 Book II L — Modes of acqviring Property .
CHAPTER VIIL
Of the Mode of clearing Property of Privileges and
Mortgages.
2181.
Contracts conveying right of ownership in im-
moveables, or real rights over immoveables, which
third persons in wrongful possession shall wish to
clear of privileges and mortgages, shall be tran-
scribed throughout by the keeper of the mortgages
within the jurisdiction in which the property is situ-
ated.
Such transcription shall be made upon a roll de-
stined for this purpose, and the keeper shall be bound
to give an acknowledgment thereof to the party re-
quiring it.
2182.
The simple transcription of deeds conveying pro-
perty upon the register of the keeper, does not ex-
onerate from mortgages and privileges established
over the immoveable.
The seller transfers to the purchaser that property
and those rights only which he had himself over the
thing sold : he transfers them subject to the same en-
cumbrances of privilege and mortgage with which
he was charged.
Title XVIII. — Of Privileges and Mortgages. 599
2183.
If the new proprietor is desirous of protecting
himself from the effect of the proceedings authorised
in the 6th chapter of the present title, he is bound,
either previously to such proceedings, or within a
month at the latest, computing from the day on
which the first summons was given, to notify to the
creditors, at the domiciles by them chosen in their
enrolments,
1st. An extract from his title, containing only the
date and quality of the act, the name and precise
designation of the seller or donor, the nature and
situation of the thing sold or given ; and if a quantity
of goods be in question, the general denomination
only of the domain and of the circles within which
they are situated, the price and the charges forming
part of the price of the sale, or the estimate of the
thing if it were the subject of donation \
2d. An extract from the transcription of the act
of sale ;
3d. A table of three columns, of which the first
shall contain the date of the mortgages and that of
the enrolments ; the second, the names of the ere-
ditors; the third, the amount of the credits en-
rolled.
2184.
l^e purchaser or donee shall declare, by the same
act, that he is ready to satisfy immediately the debts
and encumbrances by mortgage, up to the amount
of the price only, without distinction of debts due
or not due.
600 Book IIL — Modes of acquiring Property.
2185.
Where the new proprietor has made such notifica-
tion within the interval fixed, every creditor whose
title is enrolled, may require the immoveable to be
put up to public auction and sold to. the highest
bidder ; on condition,
1st. That such requisition shall be signified to the
new proprietor within forty days, at the latest, from
the notification made at the instance of the latter ;
adding thereto 4wo days for the distance of five
myriameters between the domicile elected and the
real domicile of each creditor making requisition ;
2d. That it shall contain the proposal of such cre-
ditor to raise the price or cause it to be raised to
one- tenth above that which, shall have been stipu*
lated in the contract, or declared by the new pro-
prietor }
3d. That the same notification shall be made
vrithin the same interval to the preceding pro-
prietor, the principal debtor ;
4th. That the original and the copies of these in-
strumehts shall be signed by the creditor making
requisition, or by his attorney expressly appointed,
who in such case is bound to produce a copy of his
warrant \
5th. That he shall offer to give security up to the
amount of the price and the charges.
The whole on pain of nullity.
«
«186.
In default by the creditors of requiring the auc-
Tide XVIIL^Of Privileges and Mortgages. 601
tion within the interval and in the forms prescribed,
the value of the immoveable becomes finally fixed
at the price stipulated in the contract, or declared
by the new proprietor, who is in consequence ex-
onerated from every privilege and mortgage, on pay-
ing the said price to the e^ditors who are authorised
to receive it, or on depositing the same.
2187.
In case of re-sale by auction, it shall take place
according to the forms established for forcible eject-
ments, at the instance either of the creditor who
shall have required it, or of the new proprietor.
The prosecutor shall announce in the bills the
price stipulated in the contract, or declared, and the
additional sum to whicb the creditor has bound him-
self to raise it or cause it to be raised.
2188.
The highest bidder is bound, beyond the price he
bid, to repay to the purchaser or to the donee dis-
possessed, the charges and lawful costs of his con-
tract, those of transcription upon the register of the
keeper, those of notification, and those made by him
for the purposes of resale.
2189.
The purchaser or donee who retains the immove-
able put up to auction by becoming highest bidder,
is not bound to cause the judgment of adjudication
to be transcribed.
602 Book III. — Modes of acquiring Property.
2190.
The creditor who has required the sale by auction^
cannot by desisting therefrom, even though he should
pay the amount of his proposal, prevent the public
adjudication^ except with the express consent of all
the other mortgage creditors.
2191.
The purchaser who shall become highest bidder
shall have his remedy as of right against the seller,
for the reimbursement of that which exceeds the
price stipulated in his contract, and for interest on
such excess, computing from the day of each pay-
ment.
2192.
In the case in which the title of the new proprietor
shall comprehend some immoveables, and some move-
ables, or several immoveables, some mortgaged,
others not mortgaged, situated within the same or
within different ofiScial jurisdictions, alienated for
one and the same price, or for separate and distinct
prices, subject or not to the same execution, the price
of each immoveable affected by particular and sepa-
rate enrolments shall be declared in the notification
of the new proprietor, by valuation, if there be ground,
of the total price expressed in the title.
The creditor being highest bidder cannot in any
case be compelled to. extend his proposal either to
moveable property, or to any other immoveables
than those which are mortgaged for his credit, and
Title XrilL—Of Privileges and Mortgages. 60S
situated within the same circle ; saving the remedy
of the new proprietor against his principals, for in-
demnity from the damage which he would sustain,
either from the division of the objects of his pur-
chase, or from that of the execution*
CHAPTER IX.
Of the Mode of exonerating from Mortgages^ where
no Enrolment eaists^ over the Prop&rty of
Husbands and Guardians.
2193.
Purchasers of immoveables belonging to husbands
or to guardians, when there shall be no enrolment
over the said immoveables by reason of the admi-
nistration of the guardian, or by reason of dower,
the preferable claims and matrimonial covenants of
the wife, may clear off the mortgages which may
exist upon property acquired by them.
2194.
. For this purpose, they shall deposit a copy, duly
examined, of the contract conveying the property,
among the rolls of the civil court of the place where
such property is situated, and they shall certify, by
an act notified, as well to the wife or supplementary
guardian, as to the civil commissioner in the court,
the deposit by them made. An abstract of such
contract, containing its date, the christian and sur-
names, professions and domiciles of the contracting
604 Book III. — Modes of acquiring Property/.
parties, a detail of the nature and situation of the
property, the price and other charges of the sale,
shall be and remain publicly affixed during two
months in the hall of the court ; during which time
the wives, husbands, guardians or supplementary
guardians, minors, interdicted persons^ relations or
friends, and the commissioner of government, shall
be permitted to require, if there be ground, and to
cause to be made at the office of the keeper of the
mortgages, the enrolments upon the immoveable
alienated, which shall have the same effect as if they
had been made on the day of the marriage-contract,
or on the day on which the guardian entered upon
his administration ; without prejudice to proceed-
ings which may take place against husbands and
guardians, as was mentioned above, with regard to
mortgages consented to by them for the benefit of
third persons, without having declared to them that
the immoveables were already encumbered with
mortgages, by reason of marriage or guardianship.
2195.
If, in the course of two months from the exposi-
tion of the contract, enrolment have not been made
on the part of married women, minors, or interdicted
persons, over the immoveables sold, they pass to the
purchaser without any charge on account of the
dowry, the matrimonial claims and covenants of the
wife, or by reason of the administration of the guar-
dian, and saving the remedy, if there be ground,
against the husband and guardian.
Title XVIIL— Of Privileges and Mortgages. 605
If enrolments have been made in right of the said
married women, miaors, or interdicted persons, and
if there are anterior creditors who absorb the whole
or part of the price, the purchaser is exonerated from
the price or from the portion of the price paid by
him to creditors arranged in the order to which they
are entitled ; and the enrolments in right of such
married women, minors, and interdicted persons,
shall be cancelled, either entirely, or up to the due
amount..
If the enrolments on the part of the married wo-
men, minors, and interdicted persons, are the more
ancient, the purchaser shall not be at liberty to make
any payment of the price to the prejudice of the
said enrolments, which shall always, as was mention-
ed above, bear the date of the contract of marriage,
or of the entry upon administration by the guardian ;
and in this case, the enrolments of the other credit-
ors who do not come in beneficial order shall be
cancelled.
CHAPTER X.
Of the Publicity of the Registers^ and of the Responsi-
bility of the Keepers.
2196.
The keepers of the mortgages are bound to deliver
to all those who require it, a copy of the acts tran-
scribed upon their registers as well as of enrolments
existing, or a certificate that none exist.
606 Book IIL-^Modes of acquiring Property.
2197.
They are responsible for injury resulting,
1st. From omission in their registers of the tran-
scription of acts of transfer, and of enrolments de-
manded in their offices ;
2d. For failure in mentioning in their certificates
the existence of one or more enrolments, unless in
the latter case the error has proceeded from insuffi-
cient instructions which cannot be charged upon
them.
2198.
The immoveable with regard to which the keeper
shall have omitted in his certificates one or more
charges enrolled, remains, saving the responsibility
of the keeper, disencumbered thereof in the hands
of the new purchaser, provided he have demanded
the certificate subsequently to the transcription of
his title ; without prejudice nevertheless to the right
of creditors to cause themselves to be arranged ac-
cording to the order which belongs to them, as long
as the price has not been paid by the purchaser, or
so long as the order made among the creditors has
not been allowed.
2199.
In no case can the keepers refuse or delay the
transcription of the acts of transfer, the enrolment
of mortgage rights, or the delivery of certificates
demanded, under pain of damages to the parties ;
for the efiecting of which, statements of refusal or
Titk XVIIL— Of Privileges and Mortgages. 60T
delay shall, at the instance of the parties requiring
them, be drawn up forthwith, either by a justice of
the peace or by the clerk of the court, or by another
officer or a notary, in the presence of two witnesses.
2200.
Nevertheless, the keepers shall be bound to have a
register on which they shall inscribe, day by day,
and in numerical order, deliveries which shall be made
to them of acts of transfer for the purpose of being
transcribed, or of the lists to be enrolled ; they shall
give, on request, an acknowledgment on stamped
paper, which shall set forth the number of the re-
gister on which the enrolment shall have been made,
and they shall not be at liberty to transcribe the acts
of transfer, or to enrol the abstracts upon the re-
gisters designed for this purpose, except at the date
and in the order of the deliveries thereof which shall
be made to them.
2201.
All the registers of the keepers must be on stamped
paper, endorsed, and signed on each page, from first
to last, by one of the judges of the court within whose
jurisdiction the office is established. The registers
shall be bound up every day like those used in the
enrolment of acts.
2202.
The keepers are bound in the exercise of their
functions to conform to all the regulations of the
608 Book IIL — Modes of acquiring Property.
present chapter, on pain of a fine from 200 to 1000
francs for the first infringement, and of deprivation
for the second ; over and above damages to the par-
ties, which shall be paid before the fine.
S203.
The mention of deposits, enrolments, and tran-
scriptions, are made upon the registers, in order,
without any blank or interlineation, on pain of a fine
of from 1000 to 2000 francs against the keeper,
and damages to the parties, payable also previously
to the fine.
TITLE XIX.
OF FORCIBLE EJECTMENT, AND OF THE ORDER AMONG
CREDITORS.
Decreed the 19/A March, 1804. Promulgated the 29th of the
same Month.
CHAPTER I.
Of forcible Ejectment
2204.
The creditor may sue for ejectment, Ist, from
property immoveable and appendages thereto deem-
ed immoveable belonging to his debtor as proprietor
thereof J 2d, from the usufruct of property of the
same nature appertaining to his debtor.
Titk XlX.'-^fforcible Ejectments, ^. 609
2205.
Nevertheless the undivided portion of a coheir in
the immoveables of a succession cannot be put up
to sale by his personal creditors, before the partition
or auction which they may demand if they judge it
convenient, or with which they have the right to in-
terfere conformably to article 882, under the title
*• Of Successions^'
2206.
The immoveables of a minor, even emancipated,
or of an interdicted parson, cannot be exposed to
sale before the sale of the moveables.
2207.
The sale of moveables is not required before
ejectment from immoveables held indiyisibly between
one of full age, and a minor or interdicted person,
if the debt is common to them, nor in the case
where the proceedings have been begun against an
adult, or before interdiction.
2208.
Ejectment from immoveables which form part of
the community, is sued for against the husband alone,
although the wife be bound for the debt.
That from immoveables of the wife which have
not entered into community, is sued for against the
husband and wife, who upon the refusal of her hus-
band to carry on proceedings with her, or in case her
husband is a minor, may be authorised by the court
610 Book IIL^^Modes x}f acquiring Property.
In case of the minority of the husband and of the
wife or of the wife only, if her husband being adult
refuse to carry on proceedings with her, a guardian
is nominated for the wife by the courts against whom
the suit is to be carried on.
2S09.
The creditor can only sue for the sale of immove-
ables which are not mortgaged to him, in case of the
insufficiency of the property which is mortgaged
to him.
2210.
A compulsory sale of property situated in different
circles can only be claimed successively, unless they
form part of one single estate.
It is sued for in the court within whose jurisdic^
tion the principal part of the estate lies, or in default
thereof, that part of the property which produces
the greatest revenue according to the rent-roll.
2211.
If property mortgaged to the creditor, and pro^
perty not mortgaged, or property situated in different
circles, form part of one and the same estate, the
sale of both is pursued together, if the debtor require
it ; and an estimate is made of the price of the ad«
judication, if there be ground.
2212;
If the debtor prove, by authentic leases, that the
net and unencumbered revenue of his immoveables-
Title XIX.—OfJhrcible Ejectments, ^c. 611
during one year, is suflBcient for the payment of the
debt in capital, interest, and expenses, and if he offer
to transfer such sum to the creditor, the suit may be
suspended by the judges, saving a right to resume
it if any opposition or obstacle occur to the payment.
221S.
Compulsory sale of immoveables can only be sued
for by virtue of an authentic and executory title, for
a debt certain and determined. If the debt consist
of coin, the value of which is not ascertained, the
suit is valid ; but the adjudication cannot be made
until after computation.
2214.
The assignee of an executory title cannot sue for
ejectment until after notification of the conveyance
has been made to the debtor.
2215.
The suit may take place by virtue of a provisional
or final judgment, executory by provision, notwith-
standing appeal; but the adjudication cannot be
made until a final judgment in the last resort, or one
passed with the force of a matter decided.
The suit cannot be carried on by virtue of judg-
ments given on default during the interval of op-
position.
2216.
The suit cannot be annulled under pretext that
rr2
612 Book IIL-^Modes of acquiring Property.
the creditor should have commenced it for a larger
sum than that which is due to him.
2217.
Every suit for ejectment from immoveables must
be preceded by a summons to pay, made, at the in-
stance of the creditor, personally to the debtor or at
his domicile by the means of an officer.
The forms of the summons and those of the suit
in ejectment are regulated by the laws relating to
that procedure.
CHAPTER II.
Of the Order and Distribution qf the Price among
the Creditors.
2218.
The order and the distribution of the price of im-
moveables, and the manner of proceeding therein,
are regulated by the laws upon that procedure.
Title XX.— Of Prescription. 618
TITLE XX.
OF PRESCBIPTION.
Decreed the 15lA of March, 1804. Promulgated the 25th of the
Mme Month,
CHAPTER I.
General Ordinances.
2219*
Prescription is a means of acquisition or of ex-
oneration by a certain lapse of time, and subject to
conditions determined by the law.
2220.
Prescription cannot be renounced by anticipation ;
prescription acquired may be renounced.
2221.
Renunciation of prescription is express or tacit :
tacit renunciation results from an act which presumes
abandonment of a right acquired.
2222.
He who is incapable of alienating, cannot renounce
prescription acquired.
614 Book III. — Modes of acquiring Property*
2223.
Judges cannot supply officially the argument re-
sulting from prescription.
2224.
Prescription may be objected in every stage of the
cause, even before the court of appeal, unless the
party who shall not have urged the objection of pre*
scription can, from circumstancesi be presumed to
have renounced it
2225.
Creditors or any other person having an interest
in establishing prescription, may object it, although
the debtor or the proprietor renounce it.
2226.
Prescription cannot be set up against the property
in things which are not the objects of commerce.
2827*
The nation, public establishments, and communes,
are subjected to prescription equally with private
persons, and may plead it in like manner.
CHAPTER 11.
Of PossessiofL
2228.
Possession is the retention or enjoyment of a thing
or a right which we hold or which we exercise by
Title XX— 0/ Prescription. 615
ourselves, or by another who holds it or who exercises
it in our name.
2S29.
In order to be able to prescribe, there is required
possession continual and uninterrupted, peaceable,
public, unequivocal, and under the title of pro-
prietor.
S2S0.
A party is always presumed to possess for himself,
and under the title of proprietor, unless it be proved
that he commenced his possession for another.
8831.
Where a person has commenced his possession in
right of others, he is always presumed to possess by
the same title, if there be no contrary proof.
88S8.
Acts of pure licence and simple toleration can lay
no foundation either for possession or prescription.
888S.
Acts of violence can lay no better ground for a
possession capable of operating prescription.
Useful possession does not commence until vio-
lence has ceased.
8884.
The actual possessor who proves his possession at
an antecedent period, is presumed to have possessed
616 Book III. — Modes (tf acquiring Property.
in the intermediate time ; saving proof to the con-
trary.
82S5.
In order to complete prescription, the party may
join to his own possession that of his predecessor, in
whatsoever manner he may have succeeded to him,
whether by universal or particular title, or by lucra-
tive or chargeable title.
CHAPTER III.
Of the Causes which prevent Presa^iption.
2236.
They who possess in right of others can never pre-
scribe by any lapse of time whatsoever.
Thus the farmer, the depositary, the usufructuary,
and all others who hold by precarious title the pro-
perty of the proprietor, are incapable of prescribing
for it.
2237.
The heirs of those who held the thing by any one
of the titles designated in the preceding article, are
also incapable of prescribing. . ^
2238.
Nevertheless, the persons enumerated in articles
2236 and 2237 may prescribe, if the title of their
possession be overthrown, either by a cause proceed-
ing from a third person, or by the opposition which
they may have made to the claim of the proprietor.
Title XX.--Of Prescription. 617
2239.
Those to whom farmers, depositaries, and other
precarious holders, have transmitted the thing by a
title convejdng ownership, may prescribe,
2240.
A man cannot prescribe against his own title, in
this sense that he cannot change upon himself the
cause and principle of his possession.
2241.
A man may prescribe against his own title, in this
sense that he may prescribe for exoneration from an
obligation which he has contracted.
CHAPTER IV.
Of the Causes which interrupt ^ or which suspend the
Course of Pfescription.
SECTION I.
Of the Causes Ufhich interrupt Prescription.
224S.
Prescription may be interrupted either naturally or
civilly.
2243.
There is a natural interruption, when the possessor
is deprived, during more tban a year, of the enjoy-
ment of the thing, whether by the ancient proprietor,
or even by a third person.
618 Book IIL^^Modes oj acquiring Property.
3B99VV*
A citation in court, a peremptoiy demand, or a
8ei2ure notified to the party whom it is desired to im-
pede in prescription, form a civil interruption.
3845.
A summons for reconciliation before the office of
the peacet interrupts prescription from the day of its
date, when it is followed by a citation from the court
given within legal intervals.
8246.
Citation in court given, even before an unautho-
rized judge, interrupts prescription.
%%M.
If the summons be null for defect in form.
If the plaintiff discontinue his demand.
If he fail to prosecute his suit.
Or if his petition be rejected,
The interruption is considered as not having oc-
curred.
2848.
Prescription is interrupted by the acknowledgment
which the debtor or the possessor makes of the right
of the party against whom he was prescribing.
2849.
A demand made, conformably to the articles
above, to one of the joint and sev^al debtors, or his
Titk XX.— Of Prescription. 619
acknowledgment, interrupts prescription against all
the rest, and even against their heirs.
A demand made on one of the heirs of a joint and
several debtor, or the acknowledgment of such heir,
does not interrupt prescription with regard to the
other coheirs, even though the debt should be a
mortgage one, if the obligation is indivisible.
Such demand or such acknowledgment does not
interrupt prescription, with regard to the other joint
debtors, except ^or that portion in which such heir
is bound.
In order to interrupt prescription entirely, with
regard to the other joint-debtors, there must be a
demand made to all the heirs of the deceased debtor,
or an acknowledgment by the whole of such heirs.
2250.
Demand made upon the principal debtor, or his
acknowledgment, interrupts prescription against the
security.
SECTION II.
Of the CttUies which suspend the Course of Prescriptum.
2251.
Prescription runs against all persons, unless they
are within some exception established by a law.
2252.
Prescription does not run against minors and in«
terdicted persons, saving what is said in article 2278,
620 Book IIL'— Modes of acquiring Property.
and with the exception of the other cases deter-
mined by the law.
2S5S.
It does not run between married persons.
2254.
Prescription runs against a married woman, al-
though she be not separated by the contract of mar-
riage, or by the law, with regard to property of which
her husband has the administration, saving her re-
medy against her husband.
2255.
Nevertheless, it does not run, during marriage,
with regard to the alienation of an estate settled ac-
cording to the regulations of dower, conformably to
article 1561, under the title " Of the Contract of Mar-
riage^ and of the respective Rights of married Per-'
sons.**
2256.
Prescription is in like manner suspended during
marriage,
1st. In the case where the action of the wife can-
not be brought until after an election to be made
touching the acceptance or renunciation of com-
munity,
2d. In the case in which the husband, having sold
property belonging to the wife without her consent,
is guarantee for the sale, and in all other cases in
Titk XX.— Of Prescription. 621
which the action by the wife shall lie against the
husband.
2257.
Prescription does not run.
With regard to a debt which depends on a con-
tingency, until such contingency occur ;
With regard to an action for warranty, until evic-
tion have taken place ;
With regard to a debt at a fixed day, until such
day have arrived.
2258.
Prescription does not run against the beneficiary
heir, with regard to demands which he has against
the succession.
It runs against a vacant succession, although not
provided with a curator.
2259.
It runs also'during the three months for making
inventory, and the forty days for deliberation.
CHAPTER V.
Of the Time required in order to prescribe.
SECTION I.
General Ordinances.
2260.
Prescription is computed by days, and not by
hours. • It is acquired when the last day of the term
is accomplished.
AR Book IIL^^Moda (^acquiring Ptopcrty.
In prescriptions which are accomplished within a
certain number of days, the supplementary days are
reckoned.
In those which are accomplished by months that
of Fructidor comprehends the supplementary days.
SECTION II.
Of a iUrty Yean* Preicripihn,
2S6S.
All actions, as well real as personal, are prescribed
by thirty years, without compelling the party who
alleges it to produce a document thereou, or without
permitting an objection to be opposed to him de-
rived from bad faith.
2808.
After twenty-eight years from the date of the last
title, the grantor of an annuity may be compelled to
furnish at his own charge a new title to his creditor
or to his assigns.
8S64.
The rules of prescription on other subjects than
those mentioned in the present title, are explained
in the titles peculiarto them.
Title XX.'-Of Prescription. 628
SECTION III.
Of Prescription hy ten and twenty Years.
S265.
The party who acquires an immoveable bon& fide,
and by just title, prescribes for property therein in
ten years, if the true proprietor lives within the
jurisdiction of the court t^ appeal within the com-
pass of which the immoveable is situated ; and in
twenty years, if he is domiciled beyond the ^aid
jmisdicdon.
2266.
If the real proprietor have had hisdomicile at dif-
ferent times, within and without the jurisdiction, it
is necessary, in order to complete prescription, to add
to the deficiency from ten years of presence therein,
a number of years of absence therefrom double of
such deficiency, in order to complete the ten years
of presence.
2267.
A tide void by defect in form cannot serve as the
basis of prescription by ten and twenty years.
2268.
Good faith is always presumed, and it lies with
the parly who alleges bad faith to prove it.
2269.
It suffices that good faith existed at the moment
of acquisition.
624 Book III. — Modes oj acquiring Property.
2270.
After ten years, architects and contractors are
discharged from the warranty of workmanship per-
formed or directed by them by estimate.
SECTION IV.
Of some partktdar Prescriptions.
2271.
The actions of masters and instructors in sciences
and arts, which they give by the month ;
That by keepers of inns and taverns, on account
of lodging and board which they supply ;
That by artisans and work-people, for the payment
of their daily labour, provisions, and salaries.
Are prescribed in six months.
2272.
The action by physicians, surgeons, and apotheca-
ries for their visits, operations, and medicine ;
That by officers of the court, for compensation
for acts notified by them, and for commissions which
they execute ;
That by merchants, for commodities sold by them
to private persons not merchants ;
That by keepers of boarding-houses, for the price
of the board of their pupils ; and. by other masters
for the price of apprenticeship ;
That by servants who are hired by the year, for
the payment of their wages ;
Are prescribed after a year.
Tiik XX.— Of Prescription. 625
2273.
The action by attornies^ for the payment of their
costs and charges, is prescribed after two years, com-
puting from the judgment on the process, or from
the settlement by the parties, or from the revocation
of the said attornies. With regard to affairs not
* terminated, they cannot make demands for . their
costs and charges which shall extend more than five
years backward.
2274.
Prescription takes place, in the cases above,
although there has been a continuation of supplies,
deliveries of goods, services, and works.
It only ceases to run when there has been an
account balanced, a schedule or obligation, and a
legal citation not annulled.
2275.
Nevertheless, those to whom such prescriptions
are objected, may tender an oath to the parties ob-
jecting them, for the purpose of ascertaining this
question whether payment has really been made.
The oath may be tendered to widows and heirs,
or to the guardians of the latter, if they be minors,
in order that they may declare whether they know
the demand to be just.
2276.
Judges and attornies are discharged as to docu-
ments five years after judgment on the proceedings.
Officers of the court/ after two years from the exe-
s s
6»6 Book III. — M<fdes of acquiring Property.
cution of the commission, 6r from the notification
of the acts with which they were intrusted, are' in
like manner itischarged therefrom.
2877.
The arrears of perpetual and life antmities ;
Those of aiitnentary pensions ;
The rents of houses, and the price of a lease of
rural property ;
Interest on sums lent, and generally every thing
which is payable by the year, or at shorter periodical
intervals ;
Are prescribed after five years.
2876.
Prescriptions which form the subject of the arti-
cles of the present section run against minors and
interdicted persons, saving their remedy against
their guardians.
2279.
In the case of moveables, possession is equivalent
to a title.
Nevertheless, the party who has lost any thing, or
from whom it has ^been stolen, may reclaim it withrn
three yeai^s, computing from the day of the loss or
robbery, against the party in whose hands he finds
it ; saving to the latter his remedy against the person
from whom he obtained it.
2280.
If the actual possessor of the thing stolen, or lost.
^^j-
■ ■• .
Title XX.— Of Prescription. . 6*7
has purchased it in a fair, or in a market, or at a
public sale, or from a merchant who sells similar
articles, the original proprietor can only procure it to
be restored to him on repaying to the possessor the
price which it cost him.
2281.
Prescriptions commenced at the period of the pub-
lication of the present title, shall be regulated con-
formably to the ancient laws.
Nevertheless, prescriptions at that time com-
menced, and for which there was still requisite, ac^
cording to the ancient laws, more than thirty years
computing from the same date, shall be accomplished
by such lapse of thirty years.
(Signed) Bonaparte, First Consul.
(Counter-signed) The Secretary of State,
Hughes B. Maret,
And sealed with the Seal of State.
Seen, the Chief Judge, Minister of Justice,
(Signed) Reonier.
Certified, the Grand Judge, Minister of Justice,
Reonier.
THE END.
LONDON I
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